Several problems that should be paid attention to when examining the creativity of patent application

No matter whether the inventor has gone through hardships or obtained it easily in the process of creating the invention, it should not affect the evaluation of invention creativity. Most inventions are the crystallization of inventors' creative labor and the summary of long-term scientific research or production practice. However, some inventions are accidental.

When examining the creativity of an invention, the examiner makes a judgment only after knowing the content of the invention, so it is easy to underestimate the creativity of the invention and make the mistake of "being wise after the event". Examiners should bear in mind that the creative evaluation of an invention is made by technicians in the technical field of the invention based on the comparison between the existing technology and the invention before the filing date, so as to reduce and avoid the influence of subjective factors.

In the process of judging creativity, considering the technical effect of the invention is conducive to correctly evaluating the creativity of the invention. If the invention has unexpected technical effects compared with the prior art, there is no need to doubt whether its technical scheme has outstanding substantive characteristics, and the invention can be regarded as creative. However, it should be noted that if it can be judged that the technical scheme of the invention is not obvious to those skilled in the field and can produce beneficial technical effects, then the invention has outstanding substantive characteristics, remarkable progress and creativity. This situation should not emphasize whether the invention has unexpected technical effects.

Whether the invention is creative or not is for the claimed invention, therefore, the evaluation of invention creativity should be carried out for the technical scheme defined in the claims. The technical features of an invention that has contributed to the existing technology, such as the technical features that make the invention produce unexpected technical effects, or the technical features that embody the invention to overcome technical prejudice, shall be written in the claims; Otherwise, even if it is recorded in the specification, it will not be considered when evaluating the creativity of the invention. In addition, the judgment of creativity should evaluate the technical scheme as a whole, that is, whether the technical scheme is creative, rather than whether a technical feature is creative.