| Since the enforcement of the first modern patent law," The Statute 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.China's establishment of the modern patent system can be traced back to the promulgation of the Patent Law of the People's Republic of China (hereinafter referred to as "the Patent Law") on March 12, 1984, which absorbed and used the experience of other countries for reference. The two amendments to the Patent Law and the Rules for the Implementation of the Patent Law in 1992 and 2000 improved China's patent system.Since entering the 21st century, great changes have taken place in the domestic and international situations, which make the patent law and the patent system encounter many new problems. To face up to the development and make the patent system play an important role effectively, the amendment to the Patent Law and the Rules for the Implementation of the Patent Law is of great importance. The intellectual property office started the third amendment in April 2005, and submitted draft amendments to patent law to the State Council's Legislative Affairs Office two years later. To polish the substantive requirements to patentable invention is an important aspect of the amendment to the Patent Law, and novelty is the essential element of the substantive requirements.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. The thesis carries out a general statement on correlative system on patent novelty by comparing method and history method combining the international patent novelty theories and the cases of the patent examination.This thesis is divided into four parts: The first part presents the theoretical foundations of novelty of technical solution. Taking patent novelty as the standard of granting patents in law, the purpose is to encourage inventors to disclose their new inventions to serve the people. If an invention-creation has been completed and made public, it is unnecessary to grant a patent. If it is granted, it will be unbeneficial to other entities or individuals and influence the social stability and economic development.The second part analyses the judgment standard of novelty of technical solution. Novelty is an integrant legal concept with various standards in different countries. In other words, there are differences in definition for prior art by circumstance, area and time. During the process of patent application, not inventions which have made public undermine the novelty of patent application. A country that applies earlier is likely to have such case that an invention has submitted the application for patent to the patent bureau which is not disclosed, during this period of time, other applicants apply for the same patent with the identical invention-creation, and in that case, the earlier application without disclosure will undermine the novelty of later application. This is called conflicting application. Similarly, not all disclosures undermine the novelty of patent applications. If an invention-creation that is disclosed by some means in some circumstances applies for the patent right within a certain period of time of disclosure, it is not novelty lose. This is the grace period.The third part focuses on the examination of novelty of technical solution. The examination of novelty is helpful to distinguish prior art and patent technology precisely. For any identical invention-creation, only one patent right shall be granted in accordance with the first paragraph of Article 13 of the Rules for the Implementation of the Patent Law. It actually provides the principle of one patent right for one invention-creation. Therefore, the examination of novelty is to compare the technical solution for application with prior art. The technical solution for application which is not prior art shall be protected and granted a patent right.The last part analyses amendment suggestions about novelty system for the Patent Law and the Rules for the Implementation of the Patent Law. After more than two years of deliberation to the community and to solicit opinions, the third amendments to the Patent Law by the Intellectual Property Office of the People's Republic of China to be approved submitted to the State Council's Legislative Affairs Office in January 2007. The main point of the amendment is to keep the balance of interest for patentee and the public, adapt to the needs of international development, and 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, the author puts forward his own view on amending on time standard, area standard and grace period of novelty, combining the specific legal provisions of the Patent Law and the Rules for the Implementation of the Patent Law. |
