3. Principles and benchmarks of creative evaluation
Whether an application for a patent for invention is creative or not can only be considered if the invention is novel.
3. 1 audit principle
Law 22.3 According to the third paragraph of Article 22 of the Patent Law, when examining whether an invention is creative, it should be examined whether it has outstanding substantive features and whether it has made significant progress.
If an independent claim is creative, the dependent claims of the independent claim are also creative.
When evaluating whether an invention is creative, the examiner should not only consider the technical scheme of the invention itself, but also consider the technical problems to be solved and the technical effects produced by the invention, and treat it as a whole. Different from the principle of "individual comparison" of novelty (see paragraph 3. 1 in Chapter III of this part), when examining creativity, the examiner can combine different technical schemes in one or more comparison documents to make judgments.
3.2 Review benchmarks
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 grasp the benchmarks correctly, the following are the outstanding substantive characteristics and the review benchmarks with remarkable progress.
3.2. 1 judgment highlighting substantive features
The judgment of highlighting substantive features refers to the process of comparing the claimed invention with the existing technology to determine whether its technical scheme is not obvious. Generally can be divided into the following three steps:
(1) Find the closest existing technology.
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 existing technology is usually the same as the technical field of the claimed invention, and the technical problems, technical effects or uses to be solved are the closest and/or the technical features of the invention are the most disclosed, or although it is different from the technical field of the claimed invention, it can realize the functions of the invention and disclose the technical features of the invention the most. 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 technical problems solved by the invention.
In the process of examination, the examiner shall objectively analyze and determine the technical problems solved by the invention. Therefore, it is necessary to first determine the differences between the claimed invention and the closest existing technology, and then determine the technical problems to be solved according to the technical effects achieved by these differences. In this sense, the technical problem solved by the invention refers to the technical task of improving the closest existing technology to obtain better invention effect than the closest existing technology.
In the process of examination, the closest existing technology determined by the examiner may be different from the existing technology described by the applicant in the specification, so the technical problems determined based on the closest existing technology may be different from the "technical problems" described in the specification. In this case, the "technical problem" should be re-determined according to the closest existing technology identified by the examiner.
The scope of the redefined "technical problem" may depend on the situation of each specific application. In principle, any technical effect of the present invention can be used as a basis for redetermining technical problems, as long as the technical effect can be obtained from the application for those skilled in the art..
(3) Judge whether the claimed invention is obvious to the technical personnel in this field.
In this step, it is necessary to judge whether the claimed invention is obvious to those skilled in the art from the technical problems solved by the closest prior art and 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 there is any enlightenment to solve the above technical problems in the existing technology, which will enable the technicians in this field to improve the existing technology and obtain the claimed invention when faced with technical problems.
In the following cases, it can generally be considered that the above-mentioned "technical enlightenment" exists in the prior art:
The distinguishing feature is common sense, such as the technical means disclosed in well-known textbooks or reference books, or the usual means in this field;
The distinguishing feature is the technical means related to the nearest existing technology, for example, the technical means disclosed in other parts of the same comparison document, which solve the same technical problems as those determined according to the nearest comparison document;
The distinguishing feature is the related technical means disclosed in another comparison document, in which the technical means solve the same problems as those determined according to the closest comparison document.
3.2.2 Judgment of significant progress
When evaluating whether an invention has made significant progress, the main consideration is whether the invention has beneficial technical effects. In the following cases, it should generally be considered that the invention has beneficial technical effects and significant progress:
(1) Compared with the closest prior art, the invention has better technical effects of improving quality, increasing output, saving energy, preventing and controlling environmental pollution and the like.
(2) The invention provides technical schemes with different technical concepts, and the technical effect can basically reach the level of the prior art. ..
(3) Invention represents the development trend of a new technology.
(4) The invention has negative effects in some aspects, but has obvious positive technical effects in other aspects.
Source: Patent Examination Guide, Patent Law.