On The Creativity Element Of The Patent License

U.S. President Abraham Lincoln once said，“The patent system is to add the fuel ofinterest to the fire of genius”. This sentence is a good interpretation of the applicableconditions of the patent system: first of all it must be "the fire of genius", the fire of geniuscan promote social progress and human development innovation. Followed by, give legalrecognition for the fire of genius and protect it.Since the formation of the patent system, themethod of the fire of genius continue to improve. The purpose of the establishment of patentsystem is to encourage innovation, so the initial conditions of the authorization of the patentsystem is that a patent be granted must be novel, but not all novel, practical things deservepatent protection. In fact, in practice there are many applications which are very similar orclose to the existing technologies, whether or not to grant these applications? The purpose ofthe patent system is concerned, should not be granted patent rights, such applications don’tmake substantial improvements to existing technology, does not belong to the scope of the fireof genius". The problems in practice promote the perfection of the legislation. In1952, U.S.patent law firstly authorize the conditional part to join the "non-obviousness" standard.Creativity is the core of the patent system and a "wizard" in the patent law. It is the basisof the legitimacy of the patent system in theory, in practice, is the focus of the patentexamination and litigation. The judgment of creativity is the most important element in thethree standard of patent, creativity judgment is only after the judgment of novelty andpracticality. At the same time, although the legislation is trying to make all standards objective,the judgment of creativity need a common technical staff in this field, so it’s difficult to get ridof the subjectivity of thinking.This paper attempts starting from a controversial patent case ofcreativity, and give theoretical analysis, in order to achieve a breakthrough of creativityproblem.This paper is divided into five chapters:Chapter one briefly introduces the controversial case, the case is about the invalidationdispute of patent. This chapter mainly uses a two-tier fruit bag invalidation case and lead tothe contents of this paper to introduce.Chapter two starting from the controversial case, and ask questions.The reason thatpatent holder and the person who requesting an invalidation have different understanding of the same case is that the seemingly objective standard of creativity still permeated with thesubjective factors. In actual operation, the level of ordinary skill in the technical field remainscontroversial.Chapter three summarizes the emerge of creativity, its definition and system value, andthe definition of creativity of several major countries were compared, the expectation from abetter understanding of the history of the development of creativity.Chapter four discusses the examination of creativity.This chapter introduces theprinciple of the creativity examination, the standard of examination of applications forinvention patents and utility model, and then back to the cases, brief analysis of the case.Chapter five discusses the issues that should be cared in the judgment of creativity. Thischapter include: an introduction of the problems prone to emerge in creativity judgment andelements which should be paid attention in order to be able to avoid or reduce the interferenceof the subjective and other factors.