Research On The Judgment Of Patentability

In the development of the modern patent system, there has established a comprehensivepatent examination procedure, including judgment of patentability. It seems like a threshold ofapply for patent, through filtering the patent applications to determine which inventions areeligible to be granted a patent. From the perspective of patent’s object, provisions of majorcountries relating to the patentable subject vary, reflecting the diversity in objectives ofnational patent policy and trending. From the overview of the patentability to deal withproblems of patent’s expansion, the main content of this paper is to study the judgment ofpatentability. The dissertation is divided into four parts:Part I is a general overview of the patentability. Firstly, to define the patentability, it isthe substantive conditions of patenting，but independent of the novelty, creativity, practicalitysubstantive examination. The essence of patentability is tell the invention as defined by thePatent Law. Secondly, trace back to the patent history. From sporadic " Royal Charter " tospecialized administrative examination, technicality became more and more important for apatent application, and with it comes the judgment of patentability. Then Article101of theU.S. Patent Act establishes the patentability terms, and the range of patentable subject matterhas been extended from machine to process. Finally, a review of the long and tortuous processof the development of patentability in China.Part II is to comb the current situation of patentability legislations in China. Inventions,utility models, industrial designs are the patent object by Article2of the Patent Law.According to its definitions, the positive standard of patentability is that the applicationshould be an invention-creation. Further, studies the special meaning of the invention in thepatent law, which is restricted by the laws of nature, technologies and technical solutions. Inaccordance with Article5and Article25, the negative limit of patentability can be basicallyattributed to technicality, policy, ethics and concurrence.Part III is to concern the specific application of patentability. The Guidelines for PatentExamination finds an method testing “technicality”, which includes three elements, namely,technical issues, techniques and technical effects. In terms of the administrative examination,there are different focuses about patentability in the preliminary examination and substantiveexamination, the process has yet to be refined. Considering the limited effect of the judicialreview in China, it’s better to illustrate with three rules formed in American cases to reflect our criteria.Part IV is to response to the issues of expansion arising from different technical fields.Patent law is inextricably bound with economic and technology, facing challenge with therapid development of hi-tech industry. It’s a trend to establish a new patentability’s standard tomeet the need of extend the term of patent’s protection, we should be more cautious andrational with the calls of legislation reform. And the requirement of technicality should besustain in China.