What are the substantive requirements for obtaining a patent
According to the provisions of Article 22, Paragraph 1, of the Patent Law, inventions and utility models for which patent rights are granted shall possess novelty, creativity and practicality.
1. Novelty
The concept of noveltyNovelty means that the same invention or utility model has not been published in domestic or foreign publications, publicly used in China, or otherwise known to the public before the filing date. There is no application filed with the Patent Office by others for the same invention or utility model and it is recorded in the patent application documents published after the filing date (including the filing date).
Therefore, novel inventions and utility models should not only be different from the existing Technology, but also be different from the patent application submitted to the patent office by others before the filing date. An invention or utility model that has been applied for and is recorded in a patent application document published after (including the filing date).
Novelty review
Review principles
When examining novelty, the judgment should be based on the following principles:
(1) The same invention or utility model
(2) Individual comparison
Examination criteria
Judge invention or utility Whether a new model is novel or not shall be based on Paragraph 2 of Article 22 of the Patent Law.
To help grasp this benchmark, several common situations in novelty judgment are given below.
1. Inventions or utility models with the same content
If the invention or utility model claimed and the reference document are If the disclosed technical content is exactly the same, or is just a simple text change, then the invention or utility model does not possess novelty.
2. Specific (lower) concept and general (higher) concept
If the claimed invention Or when comparing a utility model with a reference document, the only difference is that the former uses a general (higher) concept, while the latter uses a specific (lower) concept to define technical features of the same nature, then the disclosure of the specific (lower) concept makes the use of the general (higher) concept An invention or utility model limited by concept loses its novelty.
3. Direct replacement of usual methods
If the difference between the claimed invention or utility model and the reference document is only a direct replacement of the conventional means in the technical field, the invention or utility model does not possess novelty. For example, if the reference document discloses a device that uses screws for fastening, but the claimed invention or utility model only replaces the screw fastening method of the device with a bolt fastening method, then the invention or utility model does not possess novelty.
4. Numerical value and numerical range
If the claimed invention or utility model contains a numerical value Or technical characteristics that continuously change within a limited numerical range, such as the size, temperature, pressure, and component content of the composition, and the remaining technical characteristics are the same as those in the reference document, then the judgment of its novelty shall be based on various regulations.
5. Product claims containing characteristics such as performance, parameters, uses or preparation methods
For The examination of the novelty of product claims containing features such as performance, parameters, uses, preparation methods, etc. shall be conducted in accordance with the following principles.
(1) Product claims including performance and parameter characteristics;
(2) Including usage Featured product claims;
(3) Product claims containing the characteristics of the preparation method.
2. Inventive step
The creativity of an invention means that the invention has outstanding substantive features and significant progress compared with the existing technology before the filing date.Prior Art
Prior art in the sense of patent law should be the technical content that is available to the public before the filing date. In other words In other words, the existing technology should be in a state that can be obtained by the public before the filing date, and contain content that enables the public to learn substantial technical knowledge.
Outstanding substantive features
The invention has outstanding substantive features, which means that to those skilled in the technical field, the invention is non-obvious compared to the existing technology. .If an invention can be obtained by a person skilled in the technical field only through logical analysis, reasoning or limited testing based on the existing technology, the invention is obvious and does not have outstanding substantive features.
Remarkable progress
The invention has significant progress, which means that the invention is compared with the existing technology. Can produce beneficial technical effects. For example, the invention overcomes the shortcomings and deficiencies existing in the existing technology, or provides a different conceptual technical solution to solve a certain technical problem, or represents a new technological development trend.
Skilled personnel in the technical field to which they belong
Whether an invention is creative shall be based on the technical personnel in the technical field to which it belongs. To evaluate the knowledge and ability.
Different from the "individual comparison" review principle of novelty, when reviewing inventiveness, one or more copies of the prior art will be evaluated. Different technical contents are combined to evaluate the claimed invention.
If an independent claim possesses inventiveness, the dependencies of the independent claim will no longer be examined Inventive step of the claim.
Examination criteria
EvaluationWhether there is an inventive step or not shall be based on Article 22, Paragraph 3 of the Patent Law. To help correctly grasp this benchmark, the general judgment methods for outstanding substantive features and the judgment criteria for significant progress are given below.
Judgment of outstanding substantive features
To determine whether an invention has outstanding substantive features is A determination is made as to whether the claimed invention is obvious to a person skilled in the art compared to the prior art.
If the claimed invention is obvious compared to the prior art, it does not have outstanding substantive features; conversely, if the comparison results show that the claimed invention Compared with the existing technology, it is non-obvious and has outstanding substantive features.
Judgment method
To determine whether the claimed invention is obvious compared to the existing technology, usually according to Follow these three steps.
1. Determine the closest existing technology
The closest existing technology refers to The technical solution in the prior art that is most closely related to the claimed invention is the basis for judging whether the invention has outstanding substantive features. The closest prior art may be, for example, the prior art that is in the same technical field as the claimed invention, has the closest technical problems, technical effects or uses to be solved, and/or discloses the most technical features of the invention, or even though it is similar to the prior art, The technical fields of the claimed inventions are different, but the prior art can realize the functions of the invention and discloses the most technical features of the invention. It should be noted that when determining the closest prior art, prior art in the same or similar technical field should first be considered.
2. Determine the distinguishing features of the invention and the technical problems actually solved by the invention
This should be done during the review Objectively analyze and determine the technical problems actually solved by the invention. To this end, one should first analyze the distinguishing features of the claimed invention compared with the closest prior art, and then determine the technical problem actually solved by the invention based on the technical effects achieved by the distinguishing features. In this sense, the technical problem actually solved by the invention refers to the technical task that requires improvement of the closest existing technology in order to obtain better technical effects.
During the review process, the closest prior art identified may be different from the one the applicant is talking about.The prior art described in the specification, therefore, the technical problem actually solved by the invention, re-determined based on the closest prior art, may be different from the technical problem described in the specification; in this case, the technical problem should be solved based on the The closest prior art identified redefines the technical problem actually solved by the invention.
The technical issues to be redetermined may depend on the specific circumstances of each invention. As a principle, any technical effect of the invention can be used as the basis for redefining the technical problem, as long as those skilled in the art can learn the technical effect from the content recorded in the application specification.
3. Determine whether the claimed invention is obvious to those skilled in the art
In this In this step, it is necessary to judge whether the claimed invention is obvious to those skilled in the art based on the closest existing technology and the technical problem actually solved by the invention. In the judgment process, what needs to be determined is whether there is some technical inspiration in the existing technology as a whole, that is, whether the existing technology provides the above-mentioned distinguishing features to be applied to the closest existing technology to solve its existing technical problems (i.e. The technical problem actually solved by the invention) will give those skilled in the art the motivation to improve the closest prior art and obtain the claimed invention when faced with the technical problem. If such technical inspiration exists in the prior art, the invention is obvious and does not have outstanding substantive features.
3. Practicality
The concept of practicality
Practiceability means that the subject matter of the invention or utility model application must be able to be manufactured or used in industry and be able to produce positive effects.
The invention or utility model for which patent rights are granted must be an invention or utility model that can solve technical problems and be applicable. It includes industries such as industry, agriculture, forestry, aquaculture, animal husbandry, transportation, culture and sports, daily necessities, and medical equipment.
Technical solutions that can be manufactured or used in industry refer to any implementable technical solution that conforms to the laws of nature and has technical characteristics. These solutions do not necessarily mean the use of machinery, or the manufacture of an object, but may also include, for example, methods of dispelling fog, or methods of converting energy from one form to another.
Being able to produce positive effects refers to the economic, technical and social effects produced by an invention or utility model patent application on the date of filing. personnel can be expected. These effects should be positive and beneficial.
Practical review
Review principles
When examining the practicality of an invention or utility model patent application, the following principles should be followed:
(1) The description (including drawings) submitted as of the filing date ) and the overall technical content disclosed in the claims, and is not limited to the content recorded in the claims;
(2) Practicality and the application It does not matter how the invention or utility model is created or whether it has been implemented.
Examination criteria
"Be able to manufacture" mentioned in Paragraph 4 of Article 22 of the Patent Law "Or use" means that the technical solution of the invention or utility model has the possibility of being manufactured or used in the industry. Technical solutions that meet practical requirements must not violate the laws of nature and must be reproducible. The lack of practicality due to inability to manufacture or use is caused by the inherent defects of the technical solution itself, and has nothing to do with the degree of disclosure in the specification.
The following are some main situations where it is not practical.
1. No reproducibility
The subject matter of a practical invention or utility model patent application shall be Reproducible. On the contrary, the subject matter of an invention or utility model patent application that is not reproducible has no practicality.
Reproducibility refers to the ability of technicians in the technical field to repeatedly implement the technical solutions used to solve technical problems in the patent application based on the disclosed technical content. Such repeated implementations must not rely on any random factors, and the results should be the same.
2. Violate the laws of nature
A practical invention or utility model patent application must comply with the laws of nature. law. Inventions or utility model patents that violate the laws of natureThe application cannot be implemented and, therefore, has no practical application.
It should be noted that those inventions that violate the law of conservation of energy or the subject matter of utility model patent applications, such as perpetual motion machines, are bound to be impractical.
3. Products that take advantage of unique natural conditions
Practical inventions or utility model patents Applications must not be for unique products defined by natural conditions. A unique product built to take advantage of specific natural conditions that is immovable from start to finish is not practical. It should be noted that just because the above-mentioned products utilizing unique natural conditions are not practical, it does not mean that the components themselves are also not practical.
4. Non-therapeutic surgical methods on human or animal bodies
Surgical methods include Therapeutic and non-therapeutic surgical procedures. Surgical methods for therapeutic purposes are not subject to patent rights; surgical methods for non-therapeutic purposes cannot be used industrially because they are performed on living humans or animals, and therefore are not practical.
5. Methods of measuring physiological parameters of the human body or animal body under extreme conditions
Measuring the human body Or the physiological parameters of the animal body under extreme conditions require the subject to be placed in an extreme environment, which will pose a threat to the life of humans or animals. The extreme conditions that different individuals of humans or animals can tolerate are different, and it is necessary to have Experienced testers determine the extreme conditions of tolerance based on the conditions of the object being tested. Therefore, this type of method cannot be used in industry and is not practical.
The following measurement methods are not practical:
(1) By gradually lowering the Or the body temperature of animals to measure the cold tolerance of humans or animals;
(2) Use the method of reducing the partial pressure of oxygen in the inhaled gas step by step It is a non-invasive examination method that increases the load on the coronary arteries and observes the compensatory response of the coronary arteries through dynamic changes in arterial blood pressure to measure the metabolic function of the coronary arteries.
6. No positive effects
Practical inventions or implementationsThe technical solution applied for with a new patent should be able to produce the expected positive effects. Inventions that are obviously useless and out of touch with social needs or technical solutions for utility model patent applications are not practical.
The above are the editor’s answers to relevant questions. If you need to know more about legal knowledge, you are welcome to enter the Legal Savior Network for legal consultation.
