Research On The Criteria For Judging The Inventiveness Of Utility Model

As an important part of China's patent system,the utility model patent system has been implemented in China for more than 30 years.Since the implementation of the utility model patent system,the utility model has played a very important role in encouraging invention and creation,promoting scientific and technological progress,enhancing China's innovation capability,and promoting China's economic development.Compared with the invention,the utility model has the characteristics of low innovation and short protection cycle,simple examination procedure,short authorization cycle and low cost,etc.The original intention of the establishment of utility model system is to provide legal protection for this distinctive patent,which complements the invention system and jointly provides protection for the development of patent in China.With the continuous development of China's scientific and technological innovation capabilities and economic level,the number of applications and authorizations for utility models has increased rapidly,which puts forward higher requirements and expectations for China's utility model system.However,China adopts a preliminary review method for utility models,which means that it does not review the inventiveness of utility models.Therefore,the authorized utility model often has poor quality and low stability.In many cases of invalidity disputes in utility models,inventiveness is regarded as a “golden clause” for judging whether a patent is valid.Although the patent law of the people's Republic of China(hereinafter referred to as the Patent Law)and the Guidelines For Patent Examination 2010(Revised Version)(hereinafter referred to as the Guidelines For Patent Examination)stipulate the criteria for judging the inventiveness of utility models,the inventive judgment of a utility model is highly subjective,there are great differences among the examiners,judges and the parties in their understanding of the criteria for judging the inventiveness of utility models.Therefore,it is necessary to understand the current social situation and needs of China's utility model system and then put forward specific and reasonable suggestions based on the study and analysis of the domestic and foreign utility model systems and relevant cases around the practical problems in the criteria for judging the inventiveness of utility models.First of all,this paper states the basic theory of the criteria for judging the inventiveness of utility models from the aspects of the development history and the legitimacy theory of the criteria for judging the inventiveness of utility models.Secondly,through the typical cases of the criteria for judging the inventiveness of utility models in China,this paper analyzes thecriteria for judging the inventiveness of utility models from the following factors: "inventive height","technical personnel in the field","obviousness","business success",and expounds the important role of these factors and problems in practice.Thirdly,this paper mainly reviews the legislation and justice related to the criteria for judging the inventiveness of utility models,and then summarizes the legislative and judicial experience of foreign countries.Finally,in view of the problems presented by typical cases in our country,this paper puts forward suggestions for improvement by drawing on the relevant legislative and judicial experience of foreign countries.In all,through the analysis of typical utility model dispute cases and the summary of excellent experience,we hope to put forward clear,specific and operable criteria for judging the inventiveness of utility models in the legal level,and improve the utility model system in China.