The novelty of a patent shall be judged according to the following principles: (1) the same invention or utility model.
An application for a patent for invention or utility model under examination is deemed to be the same invention or utility model (hereinafter referred to as an application published earlier or later) if its technical field, technical problems solved, technical scheme and expected effect are substantially the same as those of the existing technology or inventions or utility models submitted to the Patent Office by any unit or individual before the application date. It should be noted that when judging novelty, the examiner should first judge whether the technical scheme of the patent application under examination is essentially the same as that of the comparison document. If the technical scheme defined in the patent application is essentially the same as the technical scheme disclosed in the reference document, and the technicians in the technical field can determine that they can be applied to the same technical field, solve the same technical problems and have the same expected effect, they are considered to be the same invention or utility model.
(2) Separate comparison
When judging novelty, each claim in an application for a patent for invention or utility model shall be compared with the relevant technical content of each invention or utility model published or announced in advance, and shall not be compared with the combination of several existing technologies or inventions or utility models published or announced in advance, nor shall it be compared with the combination of multiple technical schemes in a comparison document. That is, judging the novelty of an application for a patent for invention or utility model applies the principle of separate comparison. This is different from the method of judging the creativity of an application for a patent for invention or utility model.
Examination benchmark of patent novelty
Whether an invention or utility model is novel or not shall be judged according to the second paragraph of Article 22 of the Patent Law. In order to help master this benchmark, several common situations in novelty judgment are given below.
1. Invention or utility model with the same content
If the claimed invention or utility model is exactly the same as the technical content disclosed in the comparison document, or it is only a simple text transformation, the invention or utility model does not possess novelty. In addition, the same contents mentioned above should be understood as including technical contents that can be directly determined from the comparison documents without any doubt.
2. Concrete (lower) concept and general (upper) concept
If the claimed invention or utility model differs from the comparison document only in that the former adopts the general (upper) concept and the latter adopts the specific (lower) concept to define the technical features of the same nature, the disclosure of the specific (lower) concept will make the invention or utility model defined by the general (upper) concept lose its novelty. On the contrary, the disclosure of the general (upper) concept does not affect the novelty of the invention or utility model defined by the specific (lower) concept.
3, the usual direct replacement means
If the difference between the claimed invention or utility model and the comparison document is only a direct replacement of the common means in this technical field, the invention or utility model does not have novelty. For example, the reference document discloses a device fixed by screws, and the claimed invention or utility model only changes the screw fixing mode of the device into the bolt fixing mode, so the invention or utility model does not have novelty.
4, numerical value and numerical range
If the claimed invention or utility model has technical features defined by numerical values or continuously changing numerical values, such as the size, temperature, pressure and content of components, and other technical features are the same as those in the comparison document, novelty judgment shall be made in accordance with the following provisions.
( 1)? The numerical value or numerical range disclosed in the comparison document falls within the numerical range of the technical features defined above, which will destroy the novelty of the claimed invention or utility model.
(2)? The numerical range disclosed in the comparison document partially overlaps with the numerical range of technical features defined above or has the same endpoint, which will destroy the novelty of the claimed invention or utility model.
(3) Comparing the two endpoints of the numerical range disclosed in the document, it will destroy the novelty of the invention or utility model if the technical characteristics defined above are discrete values and either of the two endpoints, but it will not destroy the novelty of the invention or utility model if the technical characteristics defined above are any value between the two endpoints.
(4) The numerical value or numerical range of the above technical features falls within the numerical range disclosed in the comparison document, and there is no end point with the numerical range disclosed in the comparison document, so the comparison document does not damage the novelty of the claimed invention or utility model.
5. A product statement containing characteristics such as performance, parameters, use or preparation method.
The novelty examination of product claims, including performance, parameters, uses and preparation methods, shall be conducted in accordance with the following principles.
(1) Product statement with performance and parameter characteristics.
For such claims, it should be considered whether the performance and parameter characteristics in the claims imply that the product to be protected has a certain structure and/or composition. If the performance and parameters mean that the product to be protected has a structure and/or composition different from that of the reference document product, the claim is novel; On the contrary, if the technicians in this technical field can't distinguish the products required to be protected from those in the reference file according to their performance and parameters, they can be presumed that the products required to be protected are the same as those in the reference file, so the applied claim is not novel unless the applicant can prove that the products with performance and parameters in the claim are different from those in the reference file in structure and/or composition according to the application file or the existing technology.
(2) Product claim containing use features
For this kind of claim, we should consider whether the utility model features in the claim imply that the product to be protected has a certain structure and/or composition. If the use is determined by the inherent characteristics of the product itself, and the use characteristics do not mean that the product has changed in structure and/or composition, the product claim defined by the use characteristics is not novel relative to the product in the comparison document.
(3) the product claim containing the characteristics of the preparation method
For such claims, it should be considered whether the preparation method leads to a certain structure and/or composition of the product. If the technical personnel in the technical field can conclude that this method will inevitably make the product have a specific structure and/or composition different from that of the reference document product, then the claim is novel; On the contrary, if the product defined in the claim of this application is the same in structure and composition as the product of the reference file, although the method is different, the claim does not have novelty unless the applicant can prove that the method leads to the product being different from the product of the reference file in structure and/or composition according to the application file or the prior art, or the method leads to the product being different from the product of the reference file in performance, thus indicating that its structure and/or composition has changed.