Abstract The term patent is derived from the Latin word Litteraepatentes, which means open letters or public documents. It is a proof that the medieval monarch used to issue certain privileges, and later referred to the exclusive rights certificate signed by the King of England. patent...
The term patent is derived from the Latin Litterae patentes, meaning public letters or public documents, a proof that the medieval monarch used to promulgate certain privileges, and later referred to the exclusive rights certificate signed by the King of England. The patent is the world's largest source of technical information. According to empirical statistical analysis, the patent contains 90%-95% of the world's scientific and technological information. In China's patent system, patents are divided into invention patents, utility model patents and design patents. The review process for these three patents is different. For design and utility models, authorization can be granted through preliminary examination; for invention patents, after the preliminary examination, the applicant is required to submit a substantive examination within the time limit, and only after the actual examination is passed. Although as mentioned above, no matter what kind of patent, as long as the application is made in China, the review process must be in accordance with the three laws of the Patent Law of the People's Republic of China, the Regulations of the Patent Law of the People's Republic of China and the Guide to Patent Examination. File to proceed.
China's requirements for the personal qualities of patent examiners are increasing year by year. At present, most of the recruits for the society and recent graduates are actual reviewers, and a few are first-time examiners. The preliminary review examiner is mainly responsible for the formal examination of the application documents and other requirements and the review of obvious substantive defects (for details, see Article 44 of the Implementing Regulations of the Patent Law), without using too much professional knowledge. Therefore, the threshold is slightly lower, and it is generally required to graduate from science and engineering, and does not require work experience in this field. The actual review examiner generally requires a master's degree or above in a relevant major, or a bachelor's degree with more than two years of work experience in related fields. This is because the process of substantive examination is based on the analysis of the technical solution. If the relevant technology in the field of the application is not taken into account, the review will not be carried out, so the actual reviewer is required to have considerable professional knowledge.
How to check the originality of the target patent application? How to judge the reasonableness of each claim?
In China, these "ingenuity" and "rationality" issues are regarded as "three-sex" issues, namely novelty, creativity and practicality. Articles 22 and 23 of the Patent Law specifically regulate this:
Article 22 Inventions and utility models that grant patent rights shall possess novelty, creativity and practicality.
Novelty means that the invention or utility model does not belong to the prior art; nor does any unit or individual apply to the patent administration department under the State Council before the filing date for the same invention or utility model, and records it after the filing date. Patent application documents or published patent documents.
Creativity means that the invention has outstanding substantive features and significant progress compared to the prior art, and the utility model has substantial features and progress.
Practicality means that the invention or utility model can be manufactured or used, and can produce a positive effect.
The term “prior art†as used in this Law refers to the technology known to the public at home and abroad before the date of application.
Article 23 The design of a patent right shall not belong to the existing design; nor shall any unit or individual submit an application to the patent administration department under the State Council before the filing date for the same design, and record it after the filing date. In the patent file.
A patented design should have a significant difference from an existing design or a combination of existing design features.
The design of the granted patent may not conflict with the legal rights that others have obtained before the filing date.
The current design referred to in this Law refers to the design known to the public at home and abroad before the application date.
The language in the law is very abstract, so the specific analysis and review principles are explained in great detail in the substantive examination chapter of the Patent Examination Guide. The patent examination examiner is also reviewed according to the interpretation in the review guide.
The so-called "ingenuity", or the novelty and creativity mentioned in the law, for the public, can be widely said that "no one has disclosed all of its technical content, or can not simply change from existing technology. Get it." Therefore, during the review process, the database needs to be retrieved before the filing date, and then compared with the application documents and judged.
For the claim, the scope of the claimed protection should be clearly and briefly defined on the basis of the specification. For specific judgments, please refer to the section on claims in the Patent Examination Guide. The "rationality" of the claims may be similar to the concept of practicability in law. The practicality here, in layman's terms, means that the technical solution requested to be protected should conform to the laws of nature and can be applied in the industry.
Is there a wrong patent application passed? What is the proportion? How can these patents that should not be passed be processed?
Although the wrong patent application is authorized, there are not many cases, but there will definitely be. The examiner has limited energy, and the knowledge cannot cover every corner of the field. The database that needs to be searched is so vast that it is inevitable that there will be such an omission, resulting in an application that is not in compliance with the law.
After these patent applications that should not be passed are authorized, they can be used normally as ordinary patents, because the patentee has obtained the patent right according to the law. As for the proportion of patent grants that should not be authorized, it is virtually impossible to count. Because if no one traces the patent, no problems will be discovered during the review process. That is to say, although there are such problems in patents that should not be authorized, if the problems are not discovered, the patents exist as a legally authorized patent, and the number of these patents cannot be calculated, and naturally it cannot be obtained. The ratio is out.
These problematic patents, although already achievable, can be invalidated after the authorization. After the patent is invalidated, it is considered to be absent from the beginning. See Article 45 of the Patent Law:
Article 45 From the day when the patent administration department of the State Council announces the grant of a patent right, any unit or individual who believes that the grant of the patent right does not comply with the relevant provisions of this Law may request the Patent Reexamination Board to declare the patent right invalid.
The law provides a way to deal with patents that should not be authorized but authorized. If someone believes that the patent does not comply with the provisions of the patent law, they can make a request to the review board. After the review committee determines that it is true, the patent can be declared invalid. .
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