Discussion On Assessment Of Inventive Step Of Utility Model

Since the implementation of the patent system of utility model,there has been controversy over how to distinguish the difference between the utility model and the invention in the inventiveness standard.Although both "Patent Law" and "Guidelines make explanations about the inventiveness standards for utility model,there are many different understandings in the inventiveness standards of utility models,especially the court system;In the work of patent examination,the examiners also have different opinions in the inventiveness examination of the utility model.The public is not clear about the inventiveness judgment standard of the utility model and understand it only through the invalidation cases or evaluation report of patent,which could be improved undoubtedly by legislation.Because of the different understanding of the review criteria among examiners,the results “granted or rejected” of the examination of one utility model may be affected differently.The conclusions of this paper are as follow:1.Separating legislation on utility model patent;2.Modifying and improving the "Guidelines for Patent Examination",providing more detailed rules for the inventiveness judgment of utility model patents,and more examination examples cases;Compiling assembly works which is similar to case law from EPO,or from U.S.Guidelines for patent examination,to ensure the unity of the referee;On the "contribution of commercial success to inventiveness judgment",from the retrial case tends to be more stringent,refining the requirements in the Guideline for Patent Examination about “the contribution of commercial Success to inventiveness judgment”,preferably with a large number of cases;3.Improving the "Judicial Interpretation of the Patent": providing evidences for common senses of non-routine experiences in administrative judgments;4.Improving the "Patent Law Implementation Rules": allowing the request for the patent evaluation report at any time;distinguishing the scope of the right to patent between having evaluation report and not,to show the fairness of the public interest.Calling on the domestic legislative level to give us a clearer,more specific,operational judgment criteria of the utility model.