| Since the enforcement of the first modern patent law, "The Statue of Monopolies" in England in 1624, patent system has played a key role in encouraging invention, promoting technology and productivity development and accelerating economic growth for over 300 years. Thus the patent system has been established and enforced in over 170 countries and regions till now.From the 1970's, with China's development of trading around the world especially Sino-American trading, and commodity (marketing) economy, it was China's modern main issue to cultivate a good environment for foreign capital investment and inspiring the enthusiasm of domestic talented. After discussion, it reaches a common sense that China should make patent law immediately. On April 1, 1985, the implement of the Patent Law of the People's Republic of China was the milestone in the patent legislative history. Twenty years' evolvement witnesses the thriving and maturing of our patent system, which exerts great influence on the technical renovation. Statistics shows that until 31st Dec. 2006, State Intellectual Property office (former Patent Bureau) had accepted 3334374 cases, including 2727626 domestic applications and 606748 foreign applications which account for 81.8% and 18.2% respectively; 1089521 inventions, 1289868 utility models and 1289868 designs account for 32.7%, 38.9% and 28.6% respectively.To obtain patent rights the invention-creation must meet the requirements of the patent law. These requirements include formal and substantive requirements. Formal requirements commonly refer to the writing method and form of patent applications; while substantive requirements commonly refer to the requirements of the invention-creation entity. Novelty, practical applicability and inventiveness is the substantive requirement to the patentable invention-creation prescribed by the patent law. The substantive requirements of patent law depend on the interest balance between inventors, designers and the society, the value of national technology policy, are influenced by the guideline to introduce in the advanced foreign technology policy and the trends of world patent system and international treaty, such as WTO and TRIPS, our country has joined or will join in the future. As an essential element of the patent law, the substantive requirement's core component is novelty. Recently, the third revised edition of patent law in which grace period on novelty is revised has been submitted to State Council for deliberation.There are few works, study, repudiation and even introduction of foreign substantive terms on patent in mainland. In one word, there are no systemic and complete studies to match the developing technology. This paper intends to carry out a general statement on correlative system on patent novelty by compare demonstration and history method.This essay has eight constructional parts as follows:The first part introduces the novelty definition of patent and its method of making law in other countries. Then, the author compares the criteria for judging "novelty" and "inventiveness" of the patent and illustrates the logic relations to judge them. Finally, discusses the novelty of technical solution and the secrecy of business secrets.The second part mainly analyses patent novelty's jurisprudence. This part demonstrates the patent fight only award when the invention or utility model is novel by study on the character of patent right. The author thinks it is because the patentee provides the unique invention, which worth our national protection their monopoly in a certain time, to the society. To public technology, people have rights to use them freely, so they are not in the range of patent monopoly, otherwise it will do harm to public. The aim of the novelty requirements is to avoid awarding patent right to public technology. Novelty is the essential requirement for awarding patent right to invention and utility model.The third part introduces the four basic concepts involving novelty judgment such as prior art, conflicting applications, cited relevant documents and substitution to same object.The fourth part introduces the principles of examination and criterion for examination for invention or utility model.The fifth part discusses and defines the disclosure of technical solution. The disclosure of technical solution has three traditional ways: publicly disclosed in publications or publicly used or made known to the public by any other means. And further demonstrates the influence of internet publication to the novelty of patent.The sixth part introduces the time standard and area standard of novelty judgment. Novelty is an integrant legal concept with various standards in different country. That is to say, there are differences in definition for prior art by circumstance, area and time.The seventh part introduces the exception condition while the novelty loses. General speaking, if the invention-creation is disclosed before the filing date, the novelty loses. But in some special cases, it is injustice to think the novelty loses all the same since the content of invention-creation has been disclosed before the filing date, and it will do harm to the communication of technology and information. Therefore, patent law defines the exceptional terms of novelty lose, that is the novelty sustains when discloses the invention in certain special occasions. In this part author defines the grace period and summarizes the international grace period and the international harmony on novelty.The last part is the mending suggestion for the definition of novelty in our patent law. Our nation is carrying out the third mending work on the specific items of patent law recently. The key point of this action is to keep the balance of interest for patentee and the public and adapt to the needs of international development, keep the stability and adjustability of law. To polish the substantive requirements to patentable invention is one focus of the amendment to the Patent Law. In this part, author put forward his own idea on the mending on area restriction and novelty grace period. |
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