(1) The so-called "novelty" is stipulated in the second paragraph of Article 22 of the Patent Law: "It means that before the filing date, no identical invention or utility model was publicly published in publications at home and abroad, publicly used in China or known to the public in other ways, and no identical invention or utility model was filed with the Patent Office by others and recorded in the patent application documents published after the filing date".
The novelty standards of inventions, utility models and designs are different.
Novelty of an invention or utility model means that before the filing date, no identical invention or utility model was published in domestic and foreign publications, used in China or known to the public in other ways, and no identical invention or utility model was applied to China National Intellectual Property Administration by others and recorded in the patent application documents published after the filing date.
The design for which the patent right is granted shall be different from or similar to the design published in domestic and foreign publications or used in China before the application date, and shall not conflict with the legal rights previously obtained by others.
(2) The so-called "creativity" is stipulated in the third paragraph of Article 22 of the Patent Law: "It means that compared with the existing technology before the filing date, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress".
For the invention, the so-called outstanding substantive features mean that compared with the prior art, the invention is not obvious to the technicians in the technical field.
If the invention can be obtained by technicians in the technical field through logical analysis, reasoning or limited experiments on the basis of the existing technology, the invention is obvious and does not have outstanding substantive characteristics.
The so-called remarkable progress means that the invention can produce beneficial technical effects compared with the closest prior art; For example, the invention overcomes the shortcomings and deficiencies existing in the prior art, or provides a technical scheme with different ideas for solving technical problems, or represents a new technical development trend.
Creativity of invention or utility model To judge whether an invention is creative or not, it should be evaluated on the basis of the knowledge and ability of technicians in their respective technical fields.
A technician in a technical field, also known as a technician in this field, refers to a hypothetical "person", assuming that he knows all the general technical knowledge of the technical field to which the invention belongs before the application date or priority date, can know all the existing technologies in this field, and has the means and ability to apply conventional experiments before that date, but he does not have the creative ability.
If the technical problems to be solved can prompt the technicians in this field to look for technical means in other technical fields, then they should also have the ability to understand the relevant existing technologies, general technical knowledge and conventional experimental means before the filing date or priority date from other technical fields.
The purpose of setting this concept is to unify the examination standards and try to avoid the influence of examiners' subjective factors.
(3) Practicality means that the subject matter of an application for invention or utility model must be able to be manufactured or used in industry and produce positive effects.
An invention or utility model that is granted a patent right must be one that can solve technical problems and be implemented.
In other words, if the application is for a product (including inventions and utility models), then the product must be able to be manufactured in industry and solve technical problems; If you are applying for a method (only referring to invention), then this method must be able to be applied to industry and solve technical problems.
Only products or methods that meet the above conditions can be granted patent rights.
The so-called industry includes industry, agriculture, forestry, aquaculture, animal husbandry, transportation, culture and sports, daily necessities and medical devices.
A technical scheme that can be manufactured or used in industry refers to a technical scheme that conforms to the laws of nature, has technical characteristics and can be implemented.
These schemes do not necessarily mean using machines or equipment, or making articles, but they can also include, for example, a method of driving fog, or a method of converting energy from one form to another.
Can produce positive effects, refers to the application for a patent for invention or utility model at the filing date, its economic, technical and social effects can be expected by technicians in their technical fields.
These influences should be positive and beneficial.