A Study Of Grace Period Of Novelty

Prior art is the frame of reference to judging novelty of inventions. As an exception of prior art, grace period is referring to the fulfillment of the patentability requirements of novelty, so it affects authorization of patent. Grace period is one of the basic questions of patent law. Recently, grace period is becoming one of the important issues in the patent law international harmonization discussion. Because each country provides great different grace period, which leads that each country has different benefits in multinational patent applications. Moreover, development of internet technology influences existing rule of grace period. Chinese patent law provides a simple grace period which already couldn't adapt the development of society, also has a distance from provision of main countries and orientation of international harmonization. Therefore, on the occasion of amending Chinese patent law and executive regulations, we must ponder over and perfect grace period.The article discusses grace period by five parts. First of all, it draws a frame round of grace period and analyses grace period ring upon ring on the base of interest balance theory. Patent law aims to encourage invention, thereby impulse advancement of social economy and technology. In fact its essential content is a fair balance between the patent owner and the public. Although grace period is an exception of prior art, it doesn't disrupt the above mentioned balance, but builds an interest balance again and makes the value orientation "efficiency first, attention to equity" come true.The second part analyses advantage and disadvantage of grace period to each interest part, in order to lay the foundation to find a point of interest balance. Grace period can protect inventors adequately and meet inventors' need of publication, experiment and exhibition. But at the same time, grace period also increases the risk of inventors and the legal uncertainty for third parties. However, if the rule of grace period is different, such as term, form of disclosures, requirements under which it can be invoked and so on, its advantage and disadvantage will be different. In addition, the system of prior user rights can rectify interest imbalance.The third part mainly analyses the state of law and development and orientation of international harmonization, in order to supply references to laying down the rules. Atpresent, each country provides different grace period and takes different attitudes towards the future of grace period, which mainly relate to exact time extent, counted from which day, form of disclosures, requirements under which it can be invoked, prior user rights (or third party right) and so on. Some counties claim general grace period to protect inventors enough;on the contrary, some claim special grace period to consider interest of the public. World Intellectual Property Organization (WIPO) and the International Association for the Protection of Industrial Property (AIPPI) are making great efforts to harmonize the rule of grace period of each country to general grace period. But this is under discussion. The concrete rule is up in the air.The fourth part describes what circumstance our country lays down the rule of grace period in. Our country has a worse ability of technical innovation and accumulates less patent technology. We are facing foreign patent bastion layer upon layer. If we provide a bad rule of grace period, our inventors will be more disadvantaged. When we provide rule of grace period, we should consider the situation of our country. Though our country is a developing country, we have better strength of science and technology in some field. So we should follow the step of international harmonization, but shouldn't rash advance. This part also analyses effects of grace period on each interested party in China, i.e. individual inventors, Small- and Medium-Sized Enterprises (SMEs), academics and related researchers, large corporations and the public. Thereby, the article discusses interest balance between interest parts.At last, a proposal is put forward to perfect our national regulation of grace period. Under the condition of according with the goal of patent law and balancing interest between each part, in view of the situation of our country and the trend of international harmonization, the author proposes to expand forms of disclosures by adding the conditions of disclosures by publication, internet publication , experiment and again disclosure of third party, and make clear that only the inventor or applicant is titled to disclose his invention during grace period;hold the line on exact time extent, counted from which day, requirements under which it can be invoked. Hope the article can provide a value reference to perfect Chinese Patent Law and executive regulations.