The Comparison On Secondary Considerations Between China And US In The Examination Of Inventiveness

Inventiveness is one of the factors to be considered in the process of theexamination as to an invention and a utility model. We examine inventiveness underthe provisions of Article22(3) of the Patent Law. Meanwhile we also could complywith the provisions of “other factors to be considered in the examination of inventivestep,” which is also called “secondary considerations” to be discussed in this paper.Based on theoretical thinking and practical application to our secondaryconsiderations, in comparison with US application to secondary considerations, thispaper explores what needs to be perfected in the examination of an inventive step inour patent system. In accordance with the analysis of the provisions and practices, thispaper gives advice to perfect regulations of the prior edition so as to improve theapplication of secondary considerations.Chapter one studies our provisions and practices of secondary considerations inthe examination of inventiveness. Section one introduces the concept and therelationship between inventiveness and secondary considerations to comprehend theessence of it. In this section, this paper also explains the significance and necessary tostudy secondary considerations. Section two analyzes the regulations and practicalapplication of secondary considerations in our examination of inventiveness. Sectionthree concludes the deficiencies of our legal status of secondary considerations. Chapter two studies the theory and practice of secondary considerations in theexamination of inventiveness in US. Section one analyzes the influence of Grahamand KSR on secondary considerations. Section two concluded the legal status of theapplication of secondary considerations. Chapter three compares the application ofsecondary considerations between China and US. Various sections analyze thedifference between China and US in detail. Chapter four gives advices to improve theapplication of secondary considerations on the basis of the comparison. Section oneanalyzes the applicability of the legal transplant. Section two gives particularsuggestions to improve the application to secondary considerations.