How to judge whether a patent application is creative?

The criteria for judging creativity are as follows. Creative judgment itself is a subjective judgment, but there are also ambiguous situations. In the patent law at home and abroad, the criteria for judging creativity are qualitative description, and there is no completely objective quantitative standard. The current patent judgment methods in various countries can only make the judgment criteria as objective as possible. Therefore, in the process of patent examination, the grasp of creativity depends largely on the examiner's subjective judgment. The examiner's subjective judgment is based on the understanding of technical scheme and patent law, and then adopts some judgment method, so the creative judgment method is the embodiment of judgment standard to some extent. If the judgment method adopted by the examiner cannot objectively reflect the creative height of an invention, it will be very unfavorable to the development of the patent system. In order to eliminate subjective factors in creative judgment as much as possible, many countries have summed up a set of effective judgment methods in their patent practice for many years. For example, in its Patent Law revised by 1952, the United States stipulated the standard of non-obviousness of creativity for the first time, in which Article 103 was added: "Although an invention has not been disclosed or recorded in the way specified in Article 102 of this Law, if the invention subject for patent protection is different from the existing technology, the common technology in the field to which the subject belongs. Patentability will not be denied because of the manufacturing method of the invention. " 1966, the Supreme Court of the United States made a judicial interpretation of the application of Article 103 in the judgment of Graham v. John Deere Company, which was recognized by the US Patent and Trademark Office, and summarized Graham's four elements, namely the scope and content of the existing technology; The difference between the existing technology and the examined claim; General technical level in the corresponding field; Auxiliary considerations, including business success, long-term desire to solve needs, failure of others, etc. ",and asked the examiner to carry out creative review according to this standard. The examination guide of the European Patent Office stipulates that in order to objectively and predictably judge whether there is an invention step, the examiner should adopt the so-called "problem-scheme method", also known as "three-step method": the first step is to determine the "closest existing technology"; The second step is to determine the "objective technical problems" to be solved; The third step is to consider whether the applied invention is obvious to the technicians in this field from the point of view of the closest existing technology and objective technical problems. When China introduced the patent system from foreign countries, it also absorbed the western countries' judgment methods of creativity, and made appropriate modifications according to the actual situation in China. At present, the judgment method of patent creativity is the "three-step method" first proposed in the 200 1 version of the Examination Guide. The so-called "three-step method" is introduced in detail in Section 3.2. 1. 1 in Chapter 4, Part II of China's Examination Guide, that is, (1) to determine the closest existing technology, (2) to determine the distinguishing features of the invention and the technical problems actually solved by the invention, and (2) to be sure, this judgment method is simple. In the process of patent examination in China, this method has been widely used and made great achievements.