Help you to obtain the Patent in China
« on: Oct 25th, 2007, 9:53pm »
----the novelty of Patent
written by : Fangfang Wang from LIAONING BANDCN LAW FIRM in China
The best way to make full use of your invention and creation is to obtain the patent right. However, the
patent right is greatly different from the other civil rights. Only the patent meeting the conditions regulated
in Patent Law is able to be granted patent right. These conditions ordered by Patent Law are divided into
two sectors: entitative conditions and procedural conditions.
Entitative conditions mean that the applicant shall guarantee the high level of the invention and creation,
and includes inventiveness and practical applicability according to Patent Law. While procedural
conditions mean that applicant shall perform the related legal procedure and process.
This special topic is to assist you to analyze the conditions required by the Patent Law and help you to
decide whether your invention and creation is to be granted patent right .This passage will only focus on
one of the essential conditions ---novelty.
The meaning of the novelty of invention and creation can be apparently explained as a technology
unknown in the world, but what’s on earth the standard of novelty and how to judge whether the invention
has novelty are critical problems. The Patent Law explicitly regulates the standard of novelty.
According to Patent Law, novelty means that, before the date of filing, no identical invention and creation
has been publicly disclosed in publications in the country or abroad or has been publicly used or made
known to the public by any other means in the country, nor has any other person filed previously with the
Patent Administration Department Under the State Council an application which described the identical
invention and creation and was published after the said date of filing. (the Patent Administration
Department Under the State Council has been named State Intellectual Property Office of PRC)
From the conditions, the checkup of novelty is a comparison process between invention of application
and invention known by people called as “document for comparison”. In all, there are two kinds of
documents for comparison, which are public technology and conflicting application.
Public technology means the invention and creation which has been publicly disclosed in publications in
the country or abroad or has been publicly used or made known to the public by any other means in the
Conflicting application means the invention and creation which has previously been filed to the State
Intellectual Property Office of PRC and would be published after the said date of filing.
Therefore, it’s necessary for you to search the documents for comparison including public patent and
conflicting application before you set foot on the road to apply for the patent right to make a preparatory
The public technology is often used to be compared with the invention and creation of application. The
critical factor of the public technology is “degree of publication”. In practice, the scope of public
technology is often ascertained by the following criterion:
The first is the methods of the publication. If the technology the same as your application or similar to
your invention and creation has been spread in public in writing, by using or by other methods including
but not limited to: dictation, report, broadcasting , TV ect. No matter which kind of methods is used to
spread the same or similar technology and make the same or similar technology known to people, your
technology of application has lost novelty.
The second is the date of publicity. If there are same or similar technology appearing in public before the
filing date, your technology of application will lost novelty.
The third is the area of publicity. If the same or similar technology has been known in the country or
abroad in publications, or has been publicly used or made known to the public by any other means in the
country, your application has lost novelty.