On The Creative Judgment Of Invention Patent

Creativity is one of essential requirements of a granted patent, and is themost important obstacle that patent applicants face, which reflects the patent value. Many countries in the world have published their own examination standard, including China. But the standards of non-obviousness are ambiguous and indeterminate, which caused great controversy in judging the creativity of specific technologies. This paper analyzes two problems of judging the creativity based on the special cases and provide some solutions.This paper is composed of five parts. Part one introduces a representativecase of patent appeals, in order to raise two major issues: Firstly, how to accurately identify the baseline level of ordinary skill in the art? Secondly, there isa lack of clear regulation on resubmitted contrast experimental data which is important to prove the "unexpected technical effect" of patents, causing much controversy about the experimental date adoption.Part two compared the related rules of U.S. Patent Law, the European Patent Convention and China’s Patent Law, introduced the evolution of the non-obviousness standard in the United States and the "Problem--Solution Approach"of Europe. In addition, Part two described the adjustments to non-obviousnessunder the influence of the KSR case.Part three traced the historical revisions of definition of "a people skilledin the art" in China. Through the comparative analysis of the positive and negative cases, I elaborated the concept of “a people skilled in the art" and indicated that "the objective technical problem" is the basis for motivation judgmentin "three step method".Part four made a thorough inquiry about how to consider "the resubmittedcontrast experimental data" and found a clear unified standard of review.Part five provide several specific suggestion to the issues during the judgeof creative. This part redefined "a person skilled in the art"; in the terms oftechnological enlightenment, this part gives a suggestion of broadening searching scope; it also suggested a more reasonable division of the technical field.