Help you to successfully obtain Patent in China
« on: Nov 8th, 2007, 7:01pm »
-------The inventiveness of patent
Source： LIAONING BANDCN LAW FIRM written by : Fangfang Wang
Inventiveness is one of the necessary conditions for patent right of invention and creation. The difference
between the invention-creation and public technology which is called the “novelty” is the first condition for
patent right, but the given degree of difference is also required by the Patent Law, that’s to say the
inventiveness of invention and utility model.
But what’s the inventiveness? How to judge whether the invention and creation has inventiveness?
According to Patent Law, Inventiveness means that, as compared with the technology existing before the
date of filing, the invention has prominent substantive features and represents a notable progress and
that the utility model has substantive features and represents progress.
So, prominent substantive features and a notable progress need to be owned by invention patent. The
utility model patent is also ordered to possess of substantive features and progress. The conditions of
inventiveness of invention patent are correspondingly higher than the ones of utility model. This passage
will focus on the invention patent and explain the inventiveness of invention patent.
According to Guideline of Investigation issued by State Intellectual Property Office, the invention with
prominent substantive features means the invention which the common technicists in the related field of
technology can’t produce on the basis of public technology by means of logistic analysis, illation and
The invention with a notable progress means the invention which can produce profitable technical effect
compared with public technology, such as overcoming defects of public technology, or making great
progress in comparison with public technology.
According to Implementing Regulations of the Patent Law of PRC, the technology used to be compared
with the invention of application is the technology 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
country, before the date of filing. Unlike investigation of novelty, the inventiveness of invention of
application shall be judged in comparison only with public technology, not including the conflicting
application said in the last passage.
The inventiveness shall be judged by the common technicists in the related field of technology. During
the investigation of inventiveness, although the conclusion is made by investigators, investigators make
this conclusion on the basis of the knowledge and ability of the common technicists in the related field of
technology, but not of the investigators themselves. The common technicists in the related field of
technology are introduced by the Patent Law with the aim to pursue fair and objective investigation.
Generally, the said common technicists are supposed to be the technicists with common technology who
are able to acquire the public technology and to do some routine experiments, but not the experts in this
field of technology.
The following steps shall be obeyed when you judge whether your invention of application has
inventiveness required by Patent Law:
First, to find out the most similar public technology ; Second, to find out which technical problem your
invention can work out and compare your invention with the most similar public technology; Third, to
judge whether your invention of application is obviously or easily to be obtained by the common
technicists in the related field of technology.
Regarding with a notable progress, compared with the inventiveness, it’s easier to judge the notable
progress which mainly focus on the profitable technical effects or makes great progress. In the following
situations, the invention is deemed to have a notable progress:
First, compared with public technology, the invention of application are able to produce better technical
effects, such as, quality improvement, quantity increase, energy saving, environment pollution
Second, the invention of application provides another different technical proposal, and the technical
effects basically arrive at the level of public technology.
Third, the invention of application stands for the new trend of some new technology.
Fourth, although the invention of application has some negative effects, the other aspects of the
invention possess of notable active technical effects.
This passage mainly introduces and analyzes the principia obeyed when judging the inventiveness of
your invention of application, the next passage will give you some good and operable methods to help
you to judge the inventiveness of you invention of application.