The Creative Elements Of The Invention Patent

With the development deeply of the economy spreading around the worldand the intellectual-economy era arriving, the effect of intellectual property hasbecome more and more important in social life and the market competition.More and more importance has been attached to the patent system which is animportant component part of intellectual property law. The substantial conditionsfor inventive patent are important component parts of the patent system. At thesame time, the creative condition for an invention is the most important one ofthe three substantial conditions to grant a patent. In this article, the authorattempts to propose some views on the creativity of an invention by, in additionto the judicial practice and the patent examination in China, making use of thetheories and practice in the examination of the creativity of a patent, especiallythe non-obvious theories and practice in US and European patent bureaus.This article is divided into five parts.The first part gives a brief introduction to the origin of the patent system andthe legislative purpose of the patent system in China so that we can have ageneral knowledge about the patent system. There is an elaboration on theconcept of the creativity of an inventive patent and the significance of theconditions to grant a patent. The process from the origin of the patent system tothe formation of the concept of the creativity of an invention has embodied thetrend of change, when granting a patent, from the condition of "newness andusefulness" to the condition of"creativity" which has appeared as a result of thechange of the society and the development of science.The second part is a shallow study to the conditions of the creativity of aninvention. In this part, concepts and standards in relevant technological fields andthe present technology are discussed. The concept and connotation of "theobvious substantial characteristics" and "the obvious advance" are attached mainirnportance to and are explained in detail.The third part is an analysis on the assessment of the creativity of aninvention. The assessment of the creativity of an invention is made on the basis of the novelty of an invention, but there are differences between the assessmentof the creativity and that of the novelty. The assessment of the object (invention)and the assessment of the subject (technicians of the technological field) are alsodiscussed. While discussing the concept and the standard of the technicians of thetechnological field, the author makes a brief introduction to the American and theEuropean ways so that we can learn from what is considered as advanced. After abrief introduction to the way to assess the creativity of an invention in US andEurope, the author proposes to apply the above-mentioned principles, standardsand subsidiary standards in an objective way. As the assessment of the creativityof an invention is embodied by means of the application document written by theapplicant, at the end of this part, the author makes an analysis on the relationshipbetween the creativity and the application document so that it will be good to theprotection of the creativity of a patent and of the benefits of the applicant.The fourth part is about the assessment of the creativity of inventions ofdifferent types in practice, including exploitation invention, complex invention,selective invention, use-altered invention, use-limited invention andcomponents-altered invention.The fifth part is about several situations that is to be noted in the practice ofassessing the creativity of an invention, that is, avoidance of making assessmentin an excessively subjective way, the assuredness in quoting technologicalmaterials, the accumulation of one's knowledge in patent law, the avoidance ofthe inclination to make an assessment after what has been done, theestablishment of the ways to make inventions, the reduction and avoidance of thenon-necessary and subjective interference with whether to grant a patent or notwhen there is a doubt as to the creativity and whether the publications after theapplication can be made use of to assess the creativity.The last part is a conclusion in which the procedure to make assessments isgiven: (1) the assessment of the latest technology, (2) determine thedifferentiating characteristics and the technological issues that have been resolved,(3) the assessment of whether the invention to be protected is obvious, (4) theconsideration of whether the introduction of the differentiating characteristics will bring a non-obvious technological effect to the technological plan on conditionthat the technological plan is subject to the four situations that are obvious. Thisprocess or procedure will help to balance the benefits of the property owner andthe public.The author is of the opinion that when assessing the creativity of aninvention, one should first have a clear idea about the concept and the implicationof creativity, and then determine, at the level of a common technician in thatparticular technological field, the differences between the technology of aninvention and the technology that has been existed and at last, determine whetherthe invention has creativity, by means of assessing whether it is of "non-obvious"and with the help of subsidiary standards and concrete types.