According to Article 22(1) of the Patent Law, inventions and utility models for which patents are granted shall possess novelty, inventiveness and utility.
I. Novelty
The concept of novelty refers to the fact that there is no identical invention or utility model which has been published in domestic and foreign publications, used publicly in China or otherwise known to the public before the date of filing, and that there is no identical invention or utility model which has been applied for by another person to the Patent Office and has been recorded in the patent application documents published after the date of filing (including the date of filing). The patent application documents published after the date of filing (including the date of filing).
Therefore, inventions and utility models with novelty should be different from the prior art, as well as from inventions or utility models for which an application has been filed with the patent office by another person prior to the filing date, and which have been recorded in the patent application documents published after the filing date (including the filing date).
Examination of Novelty
Principles of Examination
The examination of novelty shall be based on the following principles:
(1) the same invention or utility model
(2) separate comparisons
Benchmarks of Examination
Judgment of whether an invention or utility model has novelty or not shall be based on Article 22(2) of the Patent Law. Article 22(2) as the benchmark.
In order to help grasp the benchmark, the following gives several common situations in the judgment of novelty.
1, the same content of the invention or utility model
If the claimed invention or utility model and the technical content disclosed in the comparative documents are exactly the same, or just a simple textual change, the invention or utility model does not have novelty.
2. Specific (inferior) concepts and general (superior) concepts
If the invention or utility model for which protection is claimed differs from the comparative document only in that the former adopts general (superior) concepts while the latter adopts specific (inferior) concepts to qualify technical features of the same nature, the disclosure of specific (inferior) concepts makes the invention or utility model limited by the general (superior) concepts lose novelty. utility model loses its novelty.
3. Direct Replacement of Usual Means
If the invention or utility model for which protection is claimed differs from the comparative document only by the direct replacement of the usual means in the technical field to which it belongs, the invention or utility model does not possess novelty. For example, if the comparative document discloses a screw-fixed device, and the invention or utility model for which protection is claimed merely replaces the screw-fixed means of the device with a bolt-fixed means, the invention or utility model does not possess novelty.
4. Numerical Values and Numerical Ranges
If the invention or utility model for which protection is claimed contains technical features that are limited by numerical values or continuously varying numerical ranges, such as the dimensions of the parts, temperatures, pressures, and the content of components in the compositions, and if the rest of the technical features are the same as those in the comparative documents, then its novelty shall be judged in accordance with the respective provisions.
5. Product Claims Containing Characteristics of Performance, Parameters, Usage or Preparation Methods
The review of the novelty of product claims containing characteristics of performance, parameters, usage, preparation methods, etc. shall be conducted in accordance with the following principles.
(1) product claims containing features of performance and parameters;
(2) product claims containing features of use;
(3) product claims containing features of preparation methods.
II. Creativity
Creativity of an invention means that the invention has outstanding substantive features and significant progress compared with the technology existing before the date of filing.
Prior art
Prior art in the sense of the Patent Law shall be the content of the technology that is known to the public before the filing date. In other words, the prior art should have been in a state accessible to the public before the filing date, and contain content from which the public can derive substantial technical knowledge.
Outstanding substantial features
Outstanding substantial features of an invention means that the invention is non-obvious to a person skilled in the art in relation to the prior art. An invention is obvious and does not have salient substantial features if it could have been obtained by a person skilled in the art on the basis of the prior art merely by logical analysis, reasoning, or limited experimentation.
Significant Advancement
Significant advancement of the invention means that the invention is capable of producing a beneficial technical effect as compared to the prior art. For example, the invention overcomes the shortcomings and deficiencies existing in the prior art, or provides a differently conceived technical solution for solving a certain technical problem, or represents a certain new technical development trend.
Technical personnel of the technical field to which the invention belongs
Whether the invention is inventive or not should be evaluated on the basis of the knowledge and ability of technical personnel of the technical field to which the invention belongs.
Unlike the principle of "individual comparison" of novelty, in the examination of inventiveness, different technical contents of one or more pieces of prior art are combined together to evaluate the invention for protection.
If an independent claim is inventive, the inventiveness of the dependent claims of the independent claim is not examined.
Benchmark
The evaluation of the inventiveness of an invention shall be based on Article 22(3) of the Patent Law. In order to help correctly grasp the benchmark, the following gives the general judgment method of outstanding substantive features and the judgment standard of significant progress.
Judgment of Outstanding Substantial Characteristics
Judgment of whether an invention has outstanding substantial characteristics means judging whether the invention claimed for protection is obvious to a person skilled in the art in relation to the prior art.
If the invention claimed for protection is obvious in relation to the prior art, it does not have outstanding substantive features; on the contrary, if the result of comparison shows that the invention claimed for protection is non-obvious in relation to the prior art, it has outstanding substantive features.
Method of Judgment
The determination of whether the invention claimed for protection is obvious in relation to the prior art can usually be made in accordance with the following three steps.
1. Determining the Closest Prior Art
The closest prior art refers to a technical solution in the prior art that is most closely related to the invention claimed for protection, which is the basis for determining whether the invention has salient substantive features. The closest prior art may be, for example, the prior art which is the same as the technical field of the invention for which protection is claimed, the technical problem to be solved, the technical effect or the use of which is closest and/or discloses the most technical features of the invention, or the prior art which, although different from the technical field of the invention for which protection is claimed, is capable of realizing the function of the invention and discloses the most technical features of the invention. It should be noted that in determining the closest prior art, prior art in the same or similar technical field should be considered first.
2. Determining the distinguishing features of the invention and the technical problems actually solved by the invention
The technical problems actually solved by the invention should be objectively analyzed and determined in the examination. To this end, first of all, should analyze what distinguishing features of the invention for protection compared with the closest prior art, and then according to the distinguishing features of the technical effect can be achieved to determine the technical problems actually solved by the invention. In this sense, the technical problem actually solved by the invention refers to the technical task of improving the closest prior art in order to obtain better technical effect.
During the examination process, since the recognized closest prior art may be different from the prior art described by the applicant in the specification, the technical problem actually solved by the invention re-established on the basis of the closest prior art may be different from the technical problem described in the specification; in this case, the technical problem actually solved by the invention should be re-established on the basis of the recognized closest prior art. the technical problem that the invention actually solves.
The technical problem to be re-determined may depend on the specific circumstances of each invention. As a matter of principle, any technical effect of the invention may be used as a basis for redetermining the technical problem, as long as the technical effect would be known to a person skilled in the art from what is set forth in the specification of the application.
3. Judging whether the invention claimed for protection is obvious to a person skilled in the art
In this step, it is necessary to judge whether the invention claimed for protection is obvious to a person skilled in the art in the light of the closest prior art and the technical problem actually solved by the invention. What is to be determined in the judgment process is whether there is some technical revelation in the prior art as a whole, i.e., whether there is a revelation given in the prior art of applying the said distinguishing feature to the closest prior art in order to solve the technical problem thereof (i.e., the technical problem actually solved by the invention), and such a revelation would motivate the person skilled in the art, when confronted with the said technical problem, to improve the closest prior art and obtain the the invention for which protection is sought. If such technical revelation exists in the prior art, the invention is obvious and does not have outstanding substantive features.
III. Utility
Concept of Utility
Utility means that the subject matter of the invention or utility model application must be capable of being made or used in industry and of producing positive results.
The invention or utility model for which a patent is granted must be capable of solving a technical problem and of being applied. It includes industry, agriculture, forestry, aquaculture, animal husbandry, transportation, as well as culture and sports, household goods and medical devices.
Technical solutions that can be manufactured or used in industry are any implementable technical solutions that conform to the laws of nature and have technical characteristics. These solutions do not necessarily imply the use of machinery and equipment, or the manufacture of an article, but may also include, for example, methods of repelling fog, or methods of converting energy from one form to another.
To be able to produce positive effects means that the invention or utility model patent application produces economic, technological and social effects that could have been anticipated by a person skilled in the technical field to which it belongs at the date of filing the application. These effects should be positive and beneficial.
Examination of Utility
Principles of Examination
When examining the utility of an invention or utility model patent application, the following principles shall be followed:
(1) to be based on the overall technical contents disclosed in the specification (including the accompanying drawings) and claims filed on the date of filing, and not limited to the contents recorded in the claims;
(2) utility has nothing to do with how the applied-for invention or utility model was created or whether it has been practiced.
Benchmarks for Examination
Article 22(4) of the Patent Law refers to "capable of being manufactured or used", which means that the technical solution of the invention or utility model has the possibility of being manufactured or used in the industry. The technical program that satisfies the requirement of utility cannot be contrary to the laws of nature and should be reproducible. The lack of utility due to the inability to be manufactured or used is caused by the inherent defects of the technical solution itself, and has nothing to do with the degree of disclosure of the specification.
The following are the main cases of non-utility.
1, no reproducibility
The subject matter of the invention or utility model patent application with utility, should have reproducibility. On the contrary, the subject matter of the invention or utility model patent application without reproducibility does not have utility.
Reproducibility means that a person skilled in the technical field is able to repeatedly implement the technical solution adopted in the patent application for solving a technical problem according to the disclosed technical content. Such repeated implementation shall not rely on any random factors, and the results of the implementation should be the same.
2. Contrary to the Laws of Nature
A patent application for an invention or utility model that is of a practical nature shall be in accordance with the laws of nature. A patent application for an invention or utility model that is contrary to the laws of nature is not practicable, and therefore does not have utility.
Special attention should be paid to the fact that the subject matter of those inventions or utility model patent applications which are contrary to the law of conservation of energy, such as the perpetual motion machine, is necessarily not practical.
3. Products Utilizing Unique Natural Conditions
An invention or utility model patent application having utility must not be a unique product limited by natural conditions. A unique product constructed by utilizing a specific natural condition which is immovable from the beginning to the end does not have utility. It should be noted that because the above mentioned product utilizing unique natural conditions does not have utility, it cannot be assumed that its components themselves also do not have utility.
4. Surgical Methods for Non-Therapeutic Purposes for Human or Animal Bodies
Surgical methods include both therapeutic and non-therapeutic surgical methods. Surgical methods for therapeutic purposes are objects for which patents are not granted; surgical methods for non-therapeutic purposes are not practical because they are performed on living human or animal bodies and cannot be used in industry.
5. Method for measuring physiological parameters of a human or animal body under extreme conditions
Measuring physiological parameters of a human or animal body under extreme conditions requires that the subject be placed in extreme environments, which may pose a threat to the life of the human or animal, and the extreme conditions that can be tolerated by different human or animal individuals are different, and experienced testers are needed to determine their tolerance of extreme conditions based on the subject's condition. It is necessary for experienced testers to determine the limit conditions to be tolerated according to the condition of the test subject, so this type of method cannot be used in industry and is not practical.
The following measurement methods are not practical:
(1) Measurement methods to measure the degree of cold tolerance of humans or animals by gradually lowering their body temperatures;
(2) Measurement methods to measure the metabolic function of the coronary arteries by gradually increasing the load on the coronary arteries by lowering the partial pressure of oxygen in the inhalation gases, and observing the compensatory response of the coronary arteries through the dynamic change of the arterial blood pressure.
6, no positive effect
With the utility of the invention or utility model patent application should be able to produce the expected positive effect of the technical program. Obviously unhelpful, out of social needs of the invention or utility model patent application of the technical program does not have utility.