Generally speaking, invention refers to making or designing something unprecedented. For example, China's compass, gunpowder, papermaking and printing are the four great inventions initiated by China. With the further development of human knowledge, various inventions are constantly emerging. From trains, cars, planes and other means of transportation, to telegrams, telephones, satellites and other communication equipment, to radios, televisions and computers, a series of modern inventions have been formed. However, the legal concept of invention is much stricter and narrower than the general invention.
Few countries in the world define invention from the front in patent law. According to Japanese patent law, invention is "a technical conception made by using the laws of nature". The United Nations World Intellectual Property Organization (WIPO) stipulated in the Model Law on Invention Patents in Developing Countries drafted by 1979 that invention is "an idea of inventors, which can solve special problems in the technical field in practice".
The patent laws of some countries use enumeration to define what an invention is. For example, Italy's patent law stipulates: "Any new invention that can be used in industry can be the subject of patent. Such as: industrial manufacturing methods or processes; Machine; Instrument; Tools or mechanical devices; Products or industrial achievements; The technical application of scientific principles, but only this application can produce direct industrial results. In the last case, the patent should be limited to the result specified by the inventor. " Since 1790, American patent law has always adopted enumeration method. Other countries, such as Canada and India, also adopt this method in their patent laws.
However, the patent laws of most countries do not clearly define inventions, nor list which inventions from the front, but adopt an exceptional method, that is, explain which inventions are not protected by the patent law from the back. For example, the German patent law stipulates: "Any invention that can be applied in industry, which is novel and contains creative steps, shall be granted a patent right." Then it is stipulated that the following items shall not be recognized as inventions in the above sense: "① Discovery, scientific theory and mathematical methods; ② Aesthetic creation; (3) Plans, rules and methods for carrying out intellectual behaviors, competitions or business activities, and computer programs; 4 information introduction. "
There is no definition of invention in Chinese patent law. However, Article 25 stipulates "except": "No patent right shall be granted for the following items: ① scientific discovery; ② Rules and methods of intellectual activities; ③ Diagnosis and treatment of diseases; ④ Animal and plant varieties; ⑤ substances obtained by nuclear transformation. The production method of the products listed in Item 4 of the preceding paragraph may be granted a patent right in accordance with the provisions of this Law. " In the detailed rules for the implementation of the patent law, the definition of invention is "a new technical scheme proposed for a product, method or its improvement". This is the difference between inventions protected by patent law and general inventions.
From the perspective of patent law, to clarify the meaning of invention, we need to pay attention to the following points.
First of all, the invention is a technical solution, but not the technology itself. Invention is an idea conceived by the inventor, but this idea alone is not enough to constitute an invention. Once this idea as an invention is put into practice, it must be able to solve specific problems in the technical field. Therefore, the invention as a technical solution is different from the invention as a technology. For example, the invention mentioned in China's "Conditions of Invention Award" is a major new scientific and technological achievement that has been proved to be applicable by practice. According to the explanation of the competent department, the so-called "it can only be applied after practice" mainly refers to production practice, intermediate experiments and experimental research results. If it can be proved to be applicable, you can also apply for the invention award. Medical inventions must be applied to clinic, and agricultural breeding inventions must be popularized and applied on a considerable scale. "This shows that the invention referred to in the Invention Award Ordinance is actually a technology that can be directly applied to industry and agriculture. Description in patent law refers to technical ideas and technical solutions. Technology and technical scheme are the results made by using natural laws, which are essentially the same. But the technology is more specific and can be directly applied to industry and agriculture. The technical scheme has not been put into practice, and it is still in the conceptual stage, but the invention in the patent law must be quite specific, at least it must be quite specific, and at least it must be possible to realize it in the future. As mentioned above, once the invention-technology scheme in the patent law is put into practice, it can solve specific problems in the technical field.
Secondly, invention is different from discovery. According to Webster's dictionary, "invention refers to the design and manufacture of unprecedented things." Discovery means revealing what people have but don't know yet. "For example, Newton summed up the law of universal gravitation between two objects: F=mm/d2 (where f stands for gravity, m and m' are two objects, and d2 stands for the square of the center distance of two objects. Before Newton announced this law, this gravitational relationship existed objectively. Generally speaking, objects protected by patent law. Because discoveries like the law of gravity only admit a pre-existing phenomenon or relationship, and do not exclude the public from enjoying their rights. If the patent law takes discovery as the object of protection, it is as foolish and ridiculous as King Knut (the king of England and Denmark in 995- 1035) ordered that the sea water should not rise. Article 100 of the us patent law stipulates: "unless otherwise specified in the document, the word' invention' refers to invention or discovery." In fact, "discovery" and invention are synonymous here. American patent law only protects inventions, not scientific discoveries.
Although there are essential differences between invention and discovery, "discovery is the mother of invention", and many inventions are based on discovery. For example, the hammer and centrifuge made by Newton's law of universal gravitation, and their uses are inventions. Another example is an incandescent lamp made of a group of carbonized filaments installed in a vacuum glass bulb, which includes the discovery of the incandescence of a substance but its immediate dissipation depends on the vacuum degree around the resistance filament. In fact, any invention contains one or more discoveries in a lifetime. As Marx said: "Any discovery will be a new discovery or a new improvement in the mode of production." Similarly, invention promotes discovery, and discovery can directly benefit human society only through invention and implementation.
No patent right can be obtained for the discovery of an unknown attribute of a known thing. For example, Morton discovered the anesthetic characteristics of ether, which is a typical example. However, for new methods or means of known things with special properties, you can apply for invention (product invention or method invention) and obtain a patent. For example, DDT was synthesized by 1874. After 65 years, it was found to have high insecticidal effect, and then a "insecticidal method containing DDT effective components"-product invention was made by using this property; Or "spraying DDT to kill insects"-method invention is a "practical invention" created by using the properties of substances, which is undoubtedly the object of patent law protection.
Third, inventions that can be patented can be divided into two categories: product inventions and method inventions. Product invention means that the idea of invention acts on products and appears in tangible form. These products are not produced naturally, but by the inventor's creative intellectual labor. Such as machines, instruments, equipment, devices, appliances and materials. The invention can be an independent product or a part of other products. It can be further divided into: ① finished products. Such as machines, equipment, appliances and other inventions; 2 materials. Such as chemical substances, compositions and other inventions; (3) the invention of new uses. Method invention refers to the method that the invention acts on the product, that is, the technical scheme that includes a series of steps to manufacture the product. It can be further divided into: ① the invention of manufacturing method. For example, methods of making photographic films, synthesizing vitamin B2 and brewing beer. The method invention can be the whole process, or it can only include one step. (2) Other inventions. Such as communication method, measurement method and chemical analysis method. (3) the method of using products (mainly substances) for new purposes. However, those methods that are purely intellectual or mental activities, such as mathematical methods and cryptography; Or completely artificial laws and regulations and economic laws, such as competition rules, traffic rules, economic organization and management plans. ; There are also provisions based on the laws of human psychological phenomena. Such as advertising methods, do not belong to the achievements made by using natural laws, nor do they belong to the inventions mentioned in the patent law, so they cannot be protected by the patent law. The term "utility model" as mentioned in the Patent Law refers to a practical technical scheme for the shape, structure or combination of products. People are used to calling it "gizmos". Worldwide, the legal system for protecting utility models was established later than that for protecting invention patents and design patents. 1843, Britain took the lead in formulating the utility model regulations. Subsequently, Germany implemented the utility model law in 189 1, Austria in 1893 and Japan in 1905. According to the materials released by the World Intellectual Property Organization, there are 13 countries currently protected by patents. They are called "utility certificates" in Germany, "utility models" in Japan and "utility models" or "new models" in some countries. The legislative forms are not exactly the same. Some countries use patent law to protect it, while most countries use special utility model law to protect it. Countries such as Britain and the United States actually protect utility models within the scope of invention patents.
As the protected object of patent law, utility model and invention are essentially the same, and they are the creative achievements of human mental work. But they are different in legal status and nature.
First of all, the scope of application is different. The utility model patent only applies to "the new technical scheme proposed by the shape, structure or combination of products", that is, it only applies to products, not to technical methods. Moreover, the products applicable to the utility model must be certain shapes with certain shapes, structures or their combinations, as well as products such as powder, gas and liquid. Can't get a patent for utility model. Invention patents are not subject to this restriction. No matter the product or method, no matter whether the product is shaped or not, patent protection can be obtained in microelectronics technology.
Secondly, the requirements of creative level are different. Patent law "has outstanding substantive characteristics and remarkable progress" in the requirements of invention; The utility model only requires "substantial features and progress".
Third, the audit procedures are different. The examination procedure of utility model patent application is relatively simple, with only preliminary examination, that is, formal examination and objection examination, and no substantive examination. In addition to formal examination, the application for invention patent must go through several complicated stages, such as early disclosure, request examination and substantive examination.
Fourth, the duration of patent right is different. The term of patent right for utility model is 10 year; The term of the invention patent right is 20 years.
Because the utility model has the above characteristics, it has unique legal and economic significance for developing countries and small and medium-sized enterprises. The history of Panasonic Corporation of Japan benefited from "small inventions". Every year, an average of 2.5 people put forward a patent (invention) or a new practical case, of which 9.9% are small inventions. The person in charge of the American Reader's Digest once said: "Japan, a small resource country, has enacted a law called Practical New Cases to protect small innovations and make more and more people think about problems; The patent application ranks first in the world and exports its wisdom. "
China's patent law takes utility model as the protection object, which is based on China's national conditions. There are many small and medium-sized enterprises in China, and the level of science and technology is relatively low. There are also many small inventions such as utility models. Legal protection of these small inventions is conducive to mobilizing the enthusiasm of the broad masses for invention and creation, and to promoting the continuous improvement of science and technology and the rapid development of the national economy in China. The term "design" as mentioned in the Patent Law refers to "a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or combination of products." According to this definition, the so-called design should meet the following requirements:
First, appearance design refers to the new design of the shape, pattern, color or their combination of products. This new design can be a graphic design of lines, patterns and colors, or a product shape. But in any case, it only involves the design of products, not the manufacturing process, structure and use of products at all. Therefore, there are great differences between inventions and utility models that take the conceptual technical scheme itself as the design object. And design is always combined with industrial products that use it, so people sometimes call it industrial design. Without industrial products, design loses its carrier. The so-called modeling refers to the three-dimensional modeling of solid products with three-dimensional space (liquid, gas or powdery and granular articles cannot have external design). The so-called pattern refers to two-dimensional graphic design, or lines, or graphics formed by different colors or shades, such as carpet patterns and decorative wallpaper patterns. Color refers to the color used. Shape, pattern and color are often combined with each other. Products whose appearance is affected by the above design must also be products that can be mass-produced and have independent uses.
Second, the design must be beautiful and novel. Appearance design affects the appearance of goods through color, graphics and modeling, and makes people feel beautiful through vision, so as to meet the psychological requirements of consumers and improve the competitiveness of goods in domestic and foreign markets. The patent law requires that the design must be novel, that is, "it should be different from or similar to the design that has been published in articles at home and abroad or used in China before the filing date".
Third, the design must be suitable for industrial applications. The so-called industrial application means that the designed products can be produced. In other words, design is different from pure aesthetic creation (even the same person can't create exactly the same art).
The legal protection of design has a long history. In the Middle Ages, some countries along the Mediterranean coast of Europe, such as Florence and Flanders, issued concessions to protect tapestries and carpets, which became the original birthplace of design protection. Subsequently, France promulgated the world's first design law in March 1806. Under the influence of France, other industrialized countries, such as Britain, the United States, Germany and Japan, have also enacted laws to protect designs. According to the materials distributed by the World Intellectual Property Organization, there are about 120 countries that give legal protection to designs.
1883, the Paris Union for the Protection of Industrial Property was established. In the signed convention, industrial design is clearly listed as the scope of protection of industrial property rights (Article 5 quinquies). From 65438 to 0925, The Hague Agreement on the Filing of Industrial Designs was signed in The Hague, and the International Application Alliance of Industrial Designs (The Hague Alliance) was established to carry out international cooperation and protection of industrial designs.
Practice shows that whether industrial products are appreciated and favored by people depends not only on their quality but also on their pleasing appearance. A beautiful design can give people a beautiful feeling, enrich people's spiritual life and cultivate people's sentiment, thus improving their competitiveness in domestic and foreign markets. In order to encourage people to constantly create new designs, promote the continuous updating of product styles, enrich the market goods and improve the competitiveness of China goods, China's patent law lists designs as the scope of protection.
In addition to clearly defining the objects of patents for inventions, utility models and designs from the front, in order to safeguard the social interests of the country and the people, and promote and develop China's science and technology and national economy, with reference to international practice, the Patent Law has also made some "exceptions" from the back, that is, clearly stipulating the inventions and foundations that will not be granted.