Patent novelty means that the invention or utility model for which a patent is applied is new, unprecedented, unpublished, publicly used in China or known to the public in other ways, and no one else has applied for a similar invention or utility model in the patent application documents published after the filing date. "
Objective standard of patent novelty
(1) open standard
Whether it is open or not is an important basis for distinguishing old and new inventions, old and new utility models and judging whether an invention or utility model is novel or not. The so-called publicity mainly refers to three ways: written publicity, use publicity and oral publicity, that is, the essential content of the invention or utility model is disclosed in the above ways so as to make it known to people. In practice, whether an invention or utility model is novel is often tested by literature retrieval. Check whether the approved patent includes the invention or utility model for which a patent is applied, and check whether the published document includes the invention or utility model for which a patent is applied.
(2) Time standard
The same invention or utility model can be independently created by two or more people, so there is a time standard to judge whose invention is novel, which is the second standard to judge whether an invention or utility model is novel. At present, countries around the world have two time standards:
One is the invention day standard. According to this standard, as long as the essential content of an invention or utility model is not disclosed before the invention date, it is novel.
The other is the standard of application date, which means that the essential content of the invention or utility model is novel before the application date. China adopts the standard of application date and time. Article 9 of the Patent Law clearly stipulates that "where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant".
(3) Regional standards
Mainly refers to the invention or utility model that is not known and used by people in the legal field and can be confirmed as novel. At present, there are three regional standards used to judge novelty in the world: absolute world regional standards, domestic regional standards and relative world regional standards. China's patent law adopts absolute worldwide regional standards in written disclosure, but adopts local regional standards in use disclosure or other disclosure.
Considering the actual situation in real life, as well as the needs of scientific research and international exchanges, Article 24 of China's Patent Law also stipulates that an invention-creation applying for a patent shall not lose its novelty in any of the following circumstances within six months before the filing date: First, it was exhibited for the first time at an international exhibition sponsored or recognized by the China Municipal Government; The second is to publish it for the first time at a designated academic conference or technical conference; Third, others disclose their contents without the consent of the applicant.
It is worth noting that the patent laws of different countries have different provisions on the exception of novelty loss. The grace period of not losing novelty stipulated in China's patent law is not recognized in most countries, and this grace period is not the priority of applicants in China. Therefore, in order to be foolproof, we should file a patent application as soon as possible after the invention is completed.