According to the first paragraph of Article 22 of the Patent Law, inventions and utility models that are granted patent rights should be novel, creative and practical.
First, novelty
The concept of novelty refers to that before the filing date, no identical invention or utility model was published in domestic and foreign publications, used in China or known to the public in other ways, and no identical invention or utility model was applied to the Patent Office by others and recorded in the patent application documents published after the filing date (including the filing date).
Therefore, the invention and utility model with novelty should be different from the existing technology, and also different from the invention or utility model that others applied to the Patent Office before the filing date and recorded in the patent application documents published after the filing date (including the filing date).
Novelty review
Review principle
When examining novelty, we should judge according to the following principles:
(1) same invention or utility model
(2) Separate comparison
Review benchmark
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.
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.
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, the novelty judgment shall conform to the provisions.
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;
(2) the product claim containing the use features;
(3) The product claim containing the characteristics of the preparation method.
Second, creativity.
The inventiveness of the invention means that compared with the prior art before the filing date, the invention has outstanding substantive features and remarkable progress.
Current technology
The existing technology in the sense of patent law should be the technical content that the public can know before the application date. In other words, the existing technology should be available to the public before the application date, and it should contain contents that can enable the public to learn substantive technical knowledge from it.
Outstanding substantive characteristics
The invention has outstanding substantive characteristics, which means that the invention is not obvious to the technicians in the technical field. If on the basis of the existing technology, the invention can be obtained only through logical analysis, reasoning or limited experiments, then the invention is obvious and does not have outstanding substantive characteristics.
Remarkable progress
The invention has made remarkable progress, which means that compared with the prior art, the invention can produce beneficial technical effects. For example, the invention overcomes the shortcomings and deficiencies existing in the prior art, or provides a technical scheme with different ideas for solving technical problems, or represents a new technical development trend.
A person skilled in the technical field
Whether the invention is creative or not should be evaluated on the basis of the knowledge and ability of technicians in their technical fields.
Different from the principle of "individual comparison" of novelty, when examining creativity, one or more different technical contents in the existing technology are combined to evaluate the claimed invention.
If the independent claim is creative, the creativity of the dependent claims of the independent claim shall not be examined.
Review benchmark
The evaluation of the creativity of an invention shall be based on the third paragraph of Article 22 of the Patent Law. In order to help to correctly grasp this benchmark, the following respectively introduce the general judgment methods that highlight substantive characteristics and the judgment standards that make significant progress.
A judgment that highlights substantive features.
Judging whether an invention has outstanding substantive features means judging whether the claimed invention is obvious to those skilled in the field.
If the claimed invention is obvious relative to the prior art, it does not have outstanding substantive features; On the contrary, if the comparison results show that the claimed invention is not obvious compared with the prior art, the invention has outstanding substantive characteristics.
Judgment method
Judging whether the present invention is obvious relative to the prior art can generally be carried out according to the following three steps.
1, determine the closest prior art.
The closest prior art refers to the technical scheme that is most closely related to the claimed invention in the prior art, and is the basis for judging whether the invention has outstanding substantive characteristics. The closest prior art may be, for example, the prior art which is the same as the technical field of the claimed invention, has the closest technical problem, technical effect or use and/or discloses most technical features of the invention, or the prior art which can realize the functions of the invention and disclose most technical features of the invention, although it is different from the technical field of the claimed invention. It should be noted that when determining the closest existing technology, the existing technologies with the same or similar technical fields should be considered first.
2. Determine the distinguishing features of the invention and the technical problems actually solved by the invention.
The technical problems actually solved by the invention should be objectively analyzed and determined in the review. Therefore, we should first analyze the distinguishing features of the claimed invention compared with the closest existing technology, and then determine the technical problems actually solved by the invention according to the technical effects that can be achieved by the distinguishing features. In this sense, the technical problem actually solved by the invention refers to the technical task of improving the closest existing technology to obtain better technical effects.
In the process of examination, because the closest existing technology determined may be different from the existing technology described by the applicant in the specification, the technical problems actually solved by the invention re-determined based on the closest existing technology may be different from those described in the specification; In this case, the technical problems actually solved by the present invention should be re-determined according to the closest existing technology.
The re-determined technical problems may depend on the specific situation of each invention. In principle, any technical effect of the invention can be used as the basis for re-determining technical problems, as long as the technical personnel in the field can know the technical effect from the contents recorded in the application specification.
3. Judge whether the claimed invention is obvious to those skilled in the art..
In this step, it is necessary to judge whether the claimed invention is obvious to those skilled in the art from the closest prior art and the technical problems actually solved by the invention. In the process of judgment, it is necessary to determine whether there is some technical enlightenment in the existing technology as a whole, that is, whether the above-mentioned distinguishing features are given in the existing technology to solve its existing 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 closest existing technology and obtain the protected invention when faced with technical problems. If there is such technical revelation in the prior art, the invention is obvious and does not have outstanding substantive features.
Third, practicality.
The concept of practicality
Practicality means that the subject matter of an invention or utility model application must be able to be manufactured or used in industry and produce positive effects.
An invention or utility model that is granted a patent right must be one that can solve technical problems and be implemented. Including industry, agriculture, forestry, aquaculture, animal husbandry, transportation, culture and sports, daily necessities, medical equipment and so on.
A technical scheme that can be manufactured or used in industry refers to a technical scheme that conforms to the laws of nature, has technical characteristics and can be implemented. These schemes do not necessarily mean using machines and equipment, or making articles, but they can also include, for example, a method of driving fog, or a method of converting energy from one form to another.
Can produce positive effects, refers to the application for a patent for invention or utility model at the filing date, its economic, technical and social effects can be expected by technicians in their technical fields. These influences should be positive and beneficial.
Practical review
Review principle
When examining the practicability of an application for a patent for invention or utility model, the following principles shall be observed:
(1) The overall technical content disclosed in the claims submitted based on the specification (including the attached drawings) and the filing date is not limited to the contents recorded in the claims;
(2) Practicality has nothing to do with how the invention or utility model applied for was created or whether it has been implemented.
Review benchmark
The ability to manufacture or use mentioned in the fourth paragraph of Article 22 of the Patent Law means that the technical scheme of an invention or utility model has the possibility of manufacturing or using it in industry. Technical solutions that meet practical requirements should not violate the laws of nature and should be reproducible. The lack of practicality due to the inability to manufacture or use is caused by the inherent defects of the technical scheme itself, which has nothing to do with the openness of the manual.
The following are the main situations that are not practical.
1, no reproducibility
The theme of an application for a patent for utility model should be reproducible. On the other hand, the theme of an invention or utility model patent application without reproducibility is not practical.
Reproducibility means that the technical personnel in the technical field can repeatedly implement the technical scheme adopted in the patent application to solve technical problems according to the disclosed technical content. The realization of this repetition must not depend on any random factors, and the realization result should be the same.
2, against the laws of nature
An application for a patent for utility model shall conform to the laws of nature. An application for a patent for an invention or utility model that violates the laws of nature cannot be implemented, so it is not practical.
Special attention should be paid to the theme of the patent application for invention or utility model that violates the law of conservation of energy, such as perpetual motion machine, which is inevitably not practical.
3. Products with unique natural conditions
An application for a patent for utility model should not be a unique product limited by natural conditions. The only product that is made with specific natural conditions and cannot be moved from beginning to end is not practical. It should be noted that just because the above products using unique natural conditions are not practical, the components themselves cannot be considered as not practical.
4. Non-therapeutic surgical methods for human or animal bodies.
Surgical methods include therapeutic and non-therapeutic surgical methods. Surgical methods for the purpose of treatment belong to the object of not granting patent right; Non-therapeutic surgical methods are not practical because they are aimed at living people or animals and cannot be used in industry.
5. Methods for measuring physiological parameters of human body or animal body in extreme cases.
To measure the physiological parameters of human or animal body under extreme conditions, it is necessary to put the tested object in extreme environment, which will pose a threat to human or animal life. Different people or animals can tolerate different extreme conditions, and experienced testers are needed to determine their tolerance limit conditions according to the conditions of the tested objects. Therefore, this method cannot be used in industry and is not practical.
The following measurement methods are not practical:
(1) A method for measuring the cold tolerance of human beings or animals by gradually lowering the body temperature;
(2) It is a noninvasive method to measure the metabolic function of coronary artery by reducing the oxygen partial pressure in inhaled gas, gradually increasing the load of coronary artery, and observing the compensatory reaction of coronary artery through the dynamic change of arterial blood pressure.
6, no positive effect
The technical scheme of the actual application for a patent for invention or utility model should be able to produce the expected positive effect. The technical scheme of an application for a patent for invention or utility model is obviously useless, divorced from social needs and not practical.