So how to effectively deal with the notice of creative examination opinions considered as "conventional technical means" can not only ensure a reasonable scope of protection, but also convince the examiner to shorten the examination process as soon as possible, which is worthy of serious consideration by patent agents.
Creative judgment
Creativity means that compared with the prior art, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress.
Judging whether an invention is creative means judging whether it has outstanding substantive characteristics and remarkable progress.
The review guide gives a general method to judge whether an invention has outstanding substantive characteristics, that is, "three-step method". The specific process of using the "three-step method" for creative judgment is as follows:
Step 1: Determine the closest existing technology;
Step 2: Determine the distinguishing features of the invention and the practical technical problems to be solved;
Step 3: Judge whether the claimed invention is obvious to those skilled in the art. ..
The three steps of the "three-step method" are closely linked.
Among them, the first and second steps are the foundation and the preparation for the third step to judge the technical enlightenment. The third step is subjective analysis and judgment, which is also the core and difficulty of creative judgment.
The Review Guide stipulates the third step: it is necessary to determine whether there is any technical enlightenment in the existing technology as a whole from the technical problems to be solved by the nearest existing technology and the actual invention, that is, whether there is any enlightenment in the existing technology to apply different technical features to the nearest existing technology to solve its technical problems (that is, the technical problems actually solved by the invention), which will give the technicians in this field the motivation to improve the nearest existing technology and obtain the claimed invention when faced with technical problems. That is to say, when judging creativity, we must consider the whole existing technology to judge whether the invention to be protected is creative.
In the notice of examination opinions involving creativity, it is often considered as "conventional technical means" by the examiner, but in the process of commenting on conventional technical means, the examiner generally does not provide evidence, which makes the patent agent's defense more difficult. How to effectively deal with the notice of creative review opinions that the examiner considers as "conventional technical means" will be discussed in the following with specific cases in order to inspire and help everyone.
situation
Application number: 201410171505.4.
Name of the invention: a long carbon chain polyamide fiber with controllable hydrophobicity and superhydrophobicity, and its preparation method and application.
Claims 1 and 2
1. A long carbon chain polyamide fiber with controllable hydrophobicity and superhydrophobicity is characterized in that the raw material of the long carbon chain polyamide fiber is 100% long carbon chain polyamide.
2. The long carbon chain polyamide fiber according to claim 1, characterized in that the melting index of the long carbon chain polyamide is 0.5 ~ 12g/ 10 min.
The core content of the first review notice
Claim 1 claims to protect long carbon chain polyamide fiber with controllable hydrophobicity and superhydrophobicity. The comparison file 1 (Polyacrylamide Fiber, Mei, Textile Dictionary, China Textile Publishing House, publication date 65438+1Oct.31200) discloses a kind of polyacrylamide fiber, specifically, polyacrylamide fiber, also known as polyamide 6 12 fiber. It is equivalent to a polyamide fiber with a long carbon chain of 100%, so it can also have controllable hydrophobic and superhydrophobic properties. Because the technical personnel in this field can't distinguish the product protected by claim 1 from the product disclosed in the comparison document 1, claim 1 is not novel and does not conform to the provisions of the second paragraph of Article 22 of the Patent Law.
The difference between the technical scheme of Claim 2 and the reference document 1 is that the melting index of long carbon chain polyamide is 0.5 ~ 12g/ 10 min. Based on the above differences, the technical scheme of claim 2 actually solves the technical problem of improving the spinnability and hydrophobicity of long carbon chain polyamides. In view of the above differences, in order to improve the elongation at break of polyamide and improve the spinnability of long carbon chain polyamide, it is a conventional technical means in this field to select long carbon chain polyamide with a certain melt index for production.
Want to answer
The additional technical features mentioned in claim 2 are merged into claim 1 to form a new independent claim 1. Compared with the reference document 1, the modified independent claim 1 differs in that the melting index of long carbon chain polyamide is 0.5 ~ 12g/ 10 min. It can be seen that the technical scheme required by the modified claim 1 in this application is different from the reference document 1, so the applicant thinks that the modified claim 1 is novel compared with the reference document 1 and conforms to the provisions of Article 22, paragraph 2 of the Patent Law.
Claim 1 of this application is different from reference document 1 in that the melting index of long carbon chain polyamide is 0.5 ~ 12g/ 10 min.
Based on the above different technical characteristics, the technical problem to be solved in this application is to improve the spinnability and hydrophobicity of long carbon chain polyamide, while ensuring the original mechanical properties of the fiber, such as tensile strength.
The author noticed that with the growth of carbon chain, the cost of raw materials (diacid and diamine) in long carbon chain nylon increased greatly, and the fiber used for spinning required the resin to have higher molecular weight, wider molecular weight distribution and higher viscosity. Because of the high melting point of resin, spinning temperature is needed. In addition, because the amide density of long carbon chain nylon decreases, its hydrophobicity increases, and the static electricity is more serious during spinning, which restricts the spinning process. Moreover, due to the hydrogen bond between polar polyamide molecules, the intermolecular force is relatively strong, which makes post-stretching more difficult. In addition, the water absorption of long carbon chain polyamides is very low because they all contain long hydrophobic carbon chains. The longer the carbon chain is, the lower the water absorption rate is, and its tensile strength is obviously reduced due to the molecular structure of soft long carbon chain. How to improve its hydrophobicity and spinnability while ensuring the tensile strength is not reduced is a technical problem to be solved in this application.
Furthermore, in the prior art, hydrophobic and superhydrophobic polyamide fibers are usually prepared by reducing the surface energy or changing the surface microstructure. The commonly used hydrophobic methods include multilayer assembly method, surface grafting modification method, * * blended yarn method, reactive * * blended yarn method, plasma treatment method, nanoparticle loading method, sol-gel method and so on. That is to say, the production of hydrophobic and superhydrophobic polyamide fibers in the prior art requires additional use of other raw materials or secondary processing of different processes.
It can be seen that the prior art has not given the technical enlightenment that the long carbon chain polyamide fiber with good mechanical properties such as tensile strength and superhydrophobicity can be obtained by adjusting the melting index of the long carbon chain polyamide. That is to say, for those skilled in the art, it is not known that the spinnability and hydrophobicity of long-chain polyamides can be improved by controlling the melt index, that is, long-chain polyamides with a certain melt index are not conventional technical means adopted by those skilled in the art to improve the spinnability and hydrophobicity of long-chain polyamide fibers, and the above technical characteristics are not common knowledge of those skilled in the art. ..
To sum up, the modified claim 1 in this application is more creative than the reference document 1, and conforms to the provisions of Article 22, paragraph 3 of the Patent Law.
Reply result
The invention was authorized after receiving a reply.
Discussion on creative OA recovery thinking considered as "conventional technical means"
In the process of replying to OA, the agent should still consider the existing technology as a whole according to the provisions of the Review Guide, and argue that the corresponding technical features are not conventional technical means.
In the process of considering the existing technology as a whole, we can consider the following factors:
1, technical field;
2. Is there any improvement technology enlightenment closest to the existing technology?
3. Distinguish the technical effects produced by technical features;
4. Distinguish the relationship between technical features.
Feelings and experiences
The case belongs to the field of chemistry, and the most common way of invention in the field of chemistry is to improve the invention, that is, to innovate on the basis of the existing technical scheme; Therefore, whether the authorization can be granted depends on whether the level of innovation can meet the requirements of the patent law, and whether the simple replacement, combination or transformation of conventional technical means is regarded as innovation. To judge whether the seemingly conventional technical means adopted can realize the innovation of invention and creation, it is necessary to judge whether the conventional technical means adopted have given technical enlightenment to the technicians in this field in the existing technology, and this judgment of "enlightenment" is also the biggest difficulty in creative defense.
The reason for the above problems is that inventors and examiners have different understandings of technical solutions and existing technologies. Because in the field of chemistry or other fields, there are often many technical schemes that seem to adopt conventional technical means on the surface, but there are many internal mechanism reactions that are unknown or unpredictable by the technicians in this field. It is the existence of this situation that finally determines that the technical scheme of invention and creation is still creative although it adopts conventional technical means on the surface. From another point of view, if the examiner or technical personnel in this field can know the internal mechanism of the technical scheme of the invention-creation, then the invention-creation is inevitably not creative and will not be authorized. Therefore, the examiner just doesn't understand the internal mechanism of the technical scheme invented by Chu, and then he will mistake the conventional technical means for the invention creation and issue an uncreative review opinion.
Therefore, when answering such creative review opinions, it is the key to answer such cases to grasp the unique mechanism of invention and creation and support it according to its technical effect.
Therefore, when writing this kind of application, the patent agent should have a thorough understanding of the mechanism of the technical scheme in advance, and deeply analyze and introduce the uniqueness of the technical scheme from the aspects of background technology, beneficial effects and examples, so that the technicians in this field can clearly understand the whole process of invention and creation, and will not think that the technical scheme of the invention is a conventional technical means.