The so-called practical invention refers to the invention formed by using the unique properties of substances (or products) after being discovered. Practical inventions are especially common in the field of medicine. When R&D institutions study the mechanism of action of drugs, they find that drugs have new functions. If this new function can achieve therapeutic application that is essentially different from the existing technology, they can apply for utility model protection.
How to judge the infringement of medical inventions?
In the invention of medical use, the drug itself often belongs to the prior art as a compound, and the claim does not contain the corresponding steps of similar method invention. Then, how should we judge whether the manufacture, use and sale infringe the patent right of medical use?
When judging the patent infringement of ordinary products and methods, it is necessary to judge whether the product or method accused of infringement contains all the components or steps of patent limitation. When judging the infringement of medical inventions, we should not only compare these technical characteristics, but also consider? Use? This implicit purpose factor.
In the invention of medical use, it is intuitive to judge whether the compounds are the same or equivalent, but the use can be clearly reflected in use, but it is often not obvious in manufacturing and sales. At this time, it is necessary to combine other evidence to prove infringement.
If there is enough evidence to show that the compound defined by the alleged infringement clearly defines the new use, that is, it covers all the technical features of the claim, then the act is an infringement of the patent for medical use. If it does not point to a new use, it is the same compound, but it does not infringe the invention patent right.
For example, DDT, as a chemical substance, has long been an existing product, but it was not until 65 years after DDT appeared that its insecticidal effect was patented. If the manufacturer of DDT only explains that it has the function of spraying on human body to kill lice, but does not mention the insecticidal function, although it is the same compound, it does not infringe the patent right of the compound for insecticidal use.
It can be said that compared with ordinary patents, there are still some differences in the application, authorization and rights protection procedures of medical inventions. Knowing this difference, we can make better use of medical inventions to protect the achievements of drug research and development, which becomes extremely valuable under the background that the pharmaceutical industry pays more and more attention to intellectual property rights.
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