1. Introduction
Law 1
The granting of patents for inventions must be conducive to their popularization and application, and to the promotion of scientific and technological progress and innovation in our country as well as to the adaptation to the needs of socialist modernization. Considering the interests of the state and the society, the Patent Law has made certain restrictive provisions on the scope of patent protection. On the one hand, Article 5 of the Patent Law stipulates that no patent shall be granted to an invention-creation which violates the state laws, social morality or jeopardizes the interests of the public ***; on the other hand, Article 25 of the Patent Law stipulates the objects for which patents shall not be granted.
2. Inventions and creations for which patents are not granted under Article 5 of the Patent Law
According to the provisions of Article 5 of the Patent Law, inventions and creations, the disclosure, use, or manufacture of which violates national laws, social morality, or jeopardizes the public **** interest, cannot be granted patents. This is a general principle. National law, social morality and public **** interest of the meaning of a broader, often due to the period of time, different regions and changes, sometimes due to the original law has been amended, some of the limitations and thus lifted, so the examiner in accordance with article 5 of the Patent Law for examination, pay special attention to this point.
Law 5
2.1 Inventions and creations in violation of national laws
National laws refer to the laws enacted and promulgated by the National People's Congress or the Standing Committee of the National People's Congress in accordance with legislative procedures. It does not include administrative rules and regulations.
A patent cannot be granted for an invention or creation the purpose of which itself is contrary to national law. For example, equipment, machines or tools used for gambling; apparatus for drug addiction; equipment for counterfeiting national currency, bills, official documents, seals and cultural relics, etc. are all inventions and creations contrary to national laws and cannot be granted patents.
The purpose of the invention itself is not in violation of national laws, but those that violate national laws due to misuse are not included in this category. Examples are various poisons, narcotics, sedatives, stimulants for medical purposes and chess and cards for recreational purposes.
Article 9 of the Rules for the Implementation of the Patent Law stipulates that the inventions and creations referred to in Article 5 of the Patent Law as violating national laws do not include inventions and creations whose mere implementation is prohibited by national laws. The meaning of this is that if the production, sale or use of the product of the mere invention-creation is limited or restricted by national laws, the product itself and its method of manufacture are not invention-creations in violation of national laws. For example, although the production, sale and use of various weapons for the purpose of national defense are restricted by national laws, the weapons themselves and their methods of manufacture still belong to the objects for which patent protection may be granted.
Law 5
2.2 Inventions and creations in violation of social morality
Social morality refers to the ethical and moral concepts and codes of conduct that are generally recognized and accepted by the public as legitimate. Its connotation is based on a certain cultural background, changes constantly with the passage of time and social progress, and varies from region to region. The social morality referred to in the Chinese Patent Law is limited to the territory of China.
If an invention is objectively contrary to social morality, it cannot be granted a patent. For example, designs with violent, murderous or obscene pictures or photographs, artificial sex organs or their substitutes for non-medical purposes, and methods of mating human beings and animals are contrary to moral customs and cannot be granted patents.
Act 5
2.3 Inventions and creations that jeopardize the public interest
To jeopardize the public interest means that the implementation or use of the invention or creation will cause harm to the public or the society, or the normal order of the state and the society will be affected. For example: the invention of the invention to cause disability or damage to property as a means, such as a burglary prevention device and method designed to make the burglar blind, can not be granted a patent; the implementation or use of the invention will seriously pollute the environment, disrupt the ecological balance, can not be granted a patent; the patent application of the text or design involves the country's major political events or religious beliefs, hurt the feelings of the people
or national feelings or propaganda of feudal superstitions, can not be granted a patent.
But if the misuse of the invention may cause harm to the public interest, or if the invention has some disadvantages while producing positive effects, for example, medicines with certain side effects on the human body, the patent can not be refused on the ground of "harm to the public interest".
2.4 Application in Partial Violation of Article 5 of the Patent Law
An application that contains elements that violate national laws, public morals, or are detrimental to the interests of the public ****, while the other parts of the application are lawful, is referred to as an application that partially violates Article 5 of the Patent Law. In examining such an application, the examiner shall notify the applicant to make an amendment to delete the parts that violate Article 5 of the Patent Law. If the applicant does not agree to delete the illegal part, the patent cannot be granted. For example, an invention of "coin-operated pinball game machine". If the player achieves a certain score, the machine throws out a certain number of coins. The examiner should notify the applicant to delete or modify the part of the machine that throws out coins to make it a simple coin-operated game machine. Otherwise, it cannot be granted a patent even though it is a new
inventive technical solution.
3. Objects for Which Patent Rights Are Not Granted According to Article 25 of the Patent Law
If the subject matter of the patent application falls into one of the five types of objects for which patent rights are not granted as listed in the first paragraph of Article 25 of the Patent Law, the patent right cannot be granted. The objects listed in Article 25(1) of the Patent Law for which patents are not granted apply not only to inventions but also to utility models.
Law 25.1(1)
3.1 Scientific Discovery
Scientific discovery refers to the revelation of objectively existing phenomena in nature, the process of change, and their characteristics and laws. Scientific theory is a summary of the understanding of nature, which is a more generalized discovery. They all belong to the extension of people's understanding. These recognized substances, phenomena, processes, characteristics and laws are different from the technical solutions for transforming the objective world, and are not inventions in the sense of the Patent Law, and therefore cannot be granted patents. For example, the discovery that silver halide has photographic properties under light, this discovery can not be granted a patent, but based on this discovery of the manufacture of photographic film and the manufacturing method of this photographic film can be granted a patent. Another example is that the discovery of a substance from nature that was previously unknown in its natural form is merely a discovery and cannot be patented. (For an examination of substances first isolated or extracted from nature, see Section 2.1 of Chapter X of this Part.)
It should be noted that invention and discovery, though fundamentally different, are closely related. Often, many inventions are based on discoveries and, in turn, inventions promote discoveries. This close relationship between invention and discovery is most prominent in the "invention of use" of chemical substances, when the discovery of the special properties of a chemical substance, the utilization of such properties of the "invention of use" came into being.
Law 25.1(2)
3.2 Rules and Methods of Intellectual Activity
Rule 2.1
Intellectual activity means the movement of the mind, which originates in the human mind and which produces abstract results through reasoning, analysis, and judgment, or which has to be mediated by the movement of the mind before it can indirectly act on nature to produce results, and which only serves to It is only a rule and method to guide people to think, recognize, judge and remember information, and it does not constitute a technical scheme because it does not adopt technical means or make use of the laws of nature, nor does it solve technical problems and produce technical effects. It neither complies with the provisions of Article 2(1) of the Rules for the Implementation of the Patent Law nor falls within the circumstances set forth in Article 25(1)(b) of the Patent Law, and therefore the rules and methods for instructing people to perform such activities cannot be granted patents.
In determining whether a patent application for an invention involving rules and methods of intellectual activity is a patentable object, the following principles shall be observed:
(1) If an invention involves only rules and methods of intellectual activity, i.e., the rules and methods of intellectual activity per se, a patent shall not be granted.
For example:
Special methods of examining patent applications;
Methods and systems of management of organization, production, commercial execution, economy, etc.;
Traffic rules, time schedules, rules of competitions;
Methods of deduction, reasoning, and operations;
Rules of classification of books, methods of arranging dictionaries, methods of searching intelligence, patent classification methods;
Methods of classifying books, methods of arranging dictionaries, methods of searching intelligence, methods of searching patents;
rules and methods of arranging calendars;
operating instructions for instruments and equipment;
grammars of various languages, methods of coding Chinese characters;
languages of computers and rules for calculating them;
shorthand algorithms or mnemonics;
mathematical theories and methods of commutation;
methods of psychological testing
Methods of teaching, lecturing, training, and taming animals;
Rules and methods of games and amusements of all kinds;
Methods of statistics, accounting, and book-keeping;
Music scores, recipes, and chess games;
Methods of expelling diseases, strengthening the body, and keeping fit;
Methods of taking censuses of diseases, and methods of demographics;
Methods of information methods of representation;
the computer program itself.
(2) If an invention as a whole is not a rule and method of intellectual activity, but a part of the invention belongs to the rule and method of intellectual activity, it should not be completely excluded from patentability, but needs to be analyzed specifically and treated differently according to the following two situations:
(i) If the contribution of the invention to the prior art lies only in the part that belongs to the rule and method of intellectual activity, then it should be analyzed specifically, and distinguished according to the following two situations:
(i) If the invention contributes to the prior art only in the part that belongs to the rules and methods of intellectual activity, the invention shall be regarded as rules and methods of intellectual activity and no patent shall be granted thereon;
(ii) if the contribution of the invention to the prior art does not or does not merely lie in the part of the invention that belongs to the rules and methods of intellectual activity, the granting of a patent cannot be refused on the basis of Article 25(1)(b) of the Patent Law.
Whether a patent application for an invention involving a computer program belongs to the rules and methods of intellectual activity in Article 25(1)(b) of the Patent Law is referred to in Chapter 9 of this Part.
Law 25.1(3)
3.3 Methods of Diagnosis and Treatment of Diseases
Methods of diagnosis and treatment of diseases refer to the process of identifying, determining, or eliminating the cause of a disease or the focus of a disease by using a living human body or an animal body as the direct object of implementation.
For humanitarian considerations and socio-ethical reasons, physicians should have the freedom to choose various methods and conditions in the diagnostic and therapeutic process. In addition, such methods, which are implemented directly on living human or animal bodies, cannot be utilized industrially and are not inventions in the sense of patent law. Therefore, diagnostic and therapeutic methods for diseases cannot be patented.
However, the apparatus or device used to carry out the method of diagnosis and treatment of diseases, as well as the substances or materials used in the method of diagnosis and treatment of diseases, are objects for which patents may be granted.
3.3.1 Diagnostic method
Diagnostic method means the whole process for identifying, studying and determining the cause of disease or the state of disease foci in a living human or animal body.
3.3.1.1 Inventions belonging to diagnostic methods
A method relating to the diagnosis of a disease belongs to a diagnostic method for which a patent is not granted only if it simultaneously satisfies the following three conditions:
(1) it takes a living human body or an animal body as an object;
(2) it has the direct purpose of obtaining a diagnosis of the disease;
(3) it includes the whole process of diagnosis. Includes the entire process of diagnosis.
The examiner, in determining whether a method invention relating to the diagnosis of a disease truly belongs to the method of diagnosis of a disease, should not only consider whether the method contains all the contents of the above conditions in the form of expression, but also analyze whether the invention substantially satisfies the above conditions. For example, an invention only relates to the method of obtaining physiological parameters from the human body, from the expression form, does not satisfy the above three conditions, but if, according to the medical knowledge in the prior art, as long as the physiological parameters are known, the diagnosis of the disease can be obtained directly, then the invention is also a diagnostic method, and the invention is also a diagnostic method, and still can not be granted the patent right.
According to the above rules, the following methods are examples of methods for which patents cannot be granted:
Pulse diagnosis, foot diagnosis, X-ray diagnosis, ultrasound diagnosis, gastrointestinal angiography diagnosis, endoscopy diagnosis, isotope tracer diagnosis, infrared light non-destructive diagnosis.
3.3.1.2 Inventions not belonging to diagnostic methods
Not all inventions related to diagnostic methods are not granted patent protection. There are some inventive methods which seem to be related to disease diagnosis, or the ultimate purpose is still to diagnose diseases, but their direct purpose is not to diagnose diseases, then they cannot be refused to be granted patents according to the provisions of Article 25(1)(c) of the Patent Law, and the following categories of inventive methods belong to this situation:
(1) the direct purpose is not to obtain diagnostic results, but only to obtain information as an intermediate result from the living human or animal body as an intermediate result and/or a method of processing information (morphological, physiological or other parameters) (it should be noted in this regard that such information can be considered as an intermediate result only if a diagnosis of a disease cannot be derived directly from the information obtained on its own, according to the medical knowledge in the prior art);
(2) a method of performing a diagnostic test on tissue, bodily fluids or excretions which have been detached from the human body or animal body, and which have been removed from the human body or animal body.
(2) Methods of processing or testing tissue, body fluids, or excretions that have been removed from a human or animal body;
(3) Methods of pathologic dissection performed on a human or animal body that has died.
3.3.2 Therapeutic method
Therapeutic method means a process of interrupting, relieving, or eliminating the cause or focus of a disease for the purpose of restoring or obtaining the health of a living human or animal body or reducing suffering.
Therapeutic methods include all kinds of methods with the purpose of treatment or of a therapeutic nature. Methods of disease prevention or immunization are considered therapeutic methods.
For methods that may contain both therapeutic and non-therapeutic purposes, it should be clearly stated that the method is used for "non-therapeutic purposes", otherwise the patent cannot be granted.
3.3.2.1 Inventions that are Methods of Treatment
Methods of treatment that are not patentable are those that are carried out on a living human or animal body for the direct purpose of treating or preventing disease.
The methods enumerated in each of the following items are or should be considered as therapeutic methods for which patents cannot be granted:
(1) methods of surgical treatment, methods of medication, and methods of psychotherapy;
(2) methods of acupuncture, anesthesia, tui na, massage, gua sha, qi gong, hypnosis, medicinal baths, air baths, sun baths, forest baths, and methods of nursing care for therapeutic purposes;< /p
(3) Methods of stimulating or irradiating the human or animal body with radiation of the electric, magnetic, acoustic, optical, thermal and other kinds for therapeutic purposes;
(4) Therapeutic methods of applying coatings, freezing, and trans-heating, etc. for therapeutic purposes;
(5) Various methods of immunization for the purpose of preventing diseases;
(6) Adjunctive methods used for the purpose of carrying out surgical therapeutic methods (6) auxiliary methods for the implementation of surgical treatment methods and drug treatment methods, such as treatment methods for organs or tissues returned to the same
subject, hemodialysis methods, methods for monitoring the depth of anesthesia, methods for the internal administration of drugs, methods for the injection of drugs, methods for the external application of drugs, and so on;
(7) methods of conception for therapeutic purposes, contraception, increase of the number of spermatozoa, in-vitro fertilization, and transfer of embryos;
( 8) Methods of cosmetic surgery, limb stretching, weight loss, and height enhancement for therapeutic purposes;
(9) Methods of disposing of wounds of the human or animal body, such as methods of disinfecting wounds and methods of bandaging;
(10) Other methods for therapeutic purposes, such as methods of artificial respiration and methods of administering oxygen.
It should be noted that although a method of using a drug to treat a disease cannot be patented, the drug itself can be patented. See Section 3.5.2 of Chapter 10 of this Part for examination of patent applications relating to medicinal uses of substances.
3.3.2.2 Inventions which are not therapeutic methods
If a method which is carried out on a human or animal body is not itself intended to be therapeutic, or if its direct purpose is not therapeutic, it shall not be refused a patent on the basis of the provisions of Article 25(1)(c) of the Patent Law. Examples include the following categories of methods:
(1) A method of manufacturing a prosthesis or a prosthesis for the purpose of treating a limb or organ mutilation, and a method of measurement carried out for the purpose of manufacturing such a prosthesis or prosthesis. For example, a method of manufacturing a denture which consists of making a mold of a tooth in a patient's mouth while the denture is manufactured outside the body, and which, although its ultimate purpose is therapeutic, has as its own purpose the manufacture of a suitable denture.
(2) A method of livestock production in which an animal body is disposed of by non-surgical means in order to alter its growth characteristics. For example, a method of promoting the growth of live sheep, improving the quality of lamb or increasing wool production by applying certain electromagnetic stimuli to them.
(3) Methods of slaughtering animals.
(4) Methods of disposal for human or animal bodies that have died. Examples include methods of autopsy, organization of remains, embalming, and preparation of specimens.
(5) Simple cosmetic methods, i.e., cosmetic methods that do not intervene in the human body or do not produce trauma, including methods of deodorizing, protecting, decorating, or grooming the body for non-therapeutic purposes that are performed locally on the exterior of the skin, hair, nails, or teeth that can be seen by people.
(6) Methods of delivering oxygen, negative oxygen ions, and moisture for the purpose of making a person or animal in a non-diseased state feel comfortable, pleasant, or under special circumstances such as diving or poison prevention.
(7) Methods of killing bacteria, viruses, lice, and fleas on the outside of the human or animal body (on the skin or hair, but excluding wounds and infected areas)
.
3.3.2.3 Surgical methods
Surgical methods, which are methods of traumatic or interventional treatment or disposition, such as dissection, excision, suture, tattooing, etc., performed on a living human or animal body using instruments, are not patentable. However, a surgical method performed on a dead human or animal body is a patentable object as long as the method does not violate Article 5 of the Patent Law.
Surgical methods for therapeutic purposes are therapeutic methods for which patent rights are not granted under Article 25(1)(c) of the Patent Law.
Law 22.4
For examination of surgical methods for non-therapeutic purposes, see Chapter V of this Part.
Law 25.1(4)
3.4 Animal and Plant Varieties
Animals and plants are living objects. According to Article 25.1(4) of the Patent Law, animal and plant varieties cannot be granted patents. Animals, as referred to in the Patent Law, are living organisms that cannot synthesize themselves, but can only sustain their lives by ingesting natural carbohydrates and proteins.
Plants, as referred to in the Patent Law, are organisms that can synthesize carbohydrates and proteins with the help of photosynthesis, with inorganic substances such as water, carbon dioxide and inorganic salts, in order to sustain their existence, and usually do not move. Animal and plant varieties may be protected by laws other than patent law, for example, new plant varieties may be given protection through the Regulations for the Protection of New Plant Varieties.
Under Article 25(2) of the Patent Law, patents may be granted for methods of production of animal and plant varieties. However, the production methods referred to here are non-biological methods, excluding methods for producing animals and plants that are primarily biological.
Whether a method belongs to a "predominantly biological method" depends on the degree of technical intervention of a person in the method; if the technical intervention of a person plays a predominantly controlling or decisive role in the purpose or effect to be achieved by the method, the method does not belong to a "predominantly biological method". predominantly biological method" and may be granted a patent. For example, a method of producing dairy cattle with high milk production by irradiated feeding; a method of improving feeding methods to produce lean pigs, etc. may be granted a patent for invention.
The so-called microbial inventions are inventions that utilize various microorganisms such as bacteria, fungi, viruses, etc. to produce a chemical substance (e.g., antibiotics) or to break down a substance, etc. Microorganisms and microbial methods can be granted patent protection. With respect to the examination of patent applications for microbial inventions, see the relevant contents of Chapter X of this Part.
Law 25.1(5)
3.5 Methods of Atomic Nuclear Transformations and Substances Obtained by Such Methods
Methods of atomic nuclear transformations and substances obtained by such methods are related to the national economy, national defense, scientific research, and the major interests of public **** life, and are not suitable for monopolization by a unit or a private person, and therefore cannot be granted patent rights.
3.5.1 Methods of Atomic Nuclear Transformation
Methods of atomic nuclear transformation refer to the process of forming one or several new atomic nuclei by splitting or polymerization of one or several atomic nuclei, such as the magnetic mirror trap method for accomplishing nuclear fusion reaction, the closed trap method, and the methods for realizing nuclear fission of various types of reactors, etc., which cannot be granted patents. However, particle acceleration methods (such as the electron traveling wave acceleration method, the electron standing wave acceleration method, the electron collision method, the electron ring acceleration method, etc.) which increase the energy of particles for the purpose of realizing the transformation of the atomic nucleus do not belong to the atomic nucleus transformation methods, and they are the objects for which patents for inventions may be granted.
To realize the nuclear transformation method of various equipment, instruments and their components, etc., are patentable objects.
3.5.2 Substances Obtained by the Method of Nuclear Transformation
Substances obtained by the method of nuclear transformation mainly refer to various radioactive isotopes produced and manufactured by gas pedals, reactors and other nuclear reaction devices, which are not patentable.
But the use of these isotopes, as well as the instruments and equipment used, are patentable objects.
2001-10-25
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If there is anything you still don't understand, you can consult the Consultation Office of the State Intellectual Property Office.
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