Patent right refers to the exclusive right of exploitation of a particular invention enjoyed by the invention-creator or his transferee within a certain period of time. To put it simply, patent right is a kind of guarantee provided by the state to the patentee for his own invention. However, not all "inventions" can be patented and protected by patent rights.
So what is patentable and what is not patentable? In view of this problem, this paper makes some analysis to facilitate the applicant to judge whether their scheme can be applied for patent.
As for whether it belongs to the object of patent protection, the Patent Law stipulates in Paragraph 2 of Article 2, Article 5 and Article 25 respectively.
1.Paragraph 2 of Article 2 of the Patent Law of the People's Republic of China stipulates that "invention as mentioned in the Patent Law means any new technical solution relating to a product, a process or an improvement thereof".
In addition, in Chapter 1 of the second part of the Guide to Patent Examination, the following provisions are made for Paragraph 2 of Article 2 of the Patent Law: “Invention" as mentioned in the patent law means any new technical solution relating to a product, a process or an improvement thereof ,……technical means are usually embodied by technical characteristics. ……Any solution to a technical problem without resorting to technical means in order to obtain technical effects consistent with the law of nature shall not be the object as provided for in paragraph 2 of Article 2 of the Patent Law .……”
According to the above provisions, we can apply for a patent only when our application document is a technical solution that solves certain technical problems and has technical effects in line with the laws of nature. In short, our application documents shall have three technical features, "technical solution, technical problem, technical effect", three are indispensable.
2.Analysis of Article 5 of the Patent Law
According to Article 5 of the Patent Law, invention for which no patent right shall be granted includes :
1)Violating the laws of the state
For example, equipment or tools dedicated to gambling; drug devices; equipment for counterfeiting national currency, etc., are inventions that violate national laws and cannot be granted patent rights. An invention-creation is not an invention-creation in violation of the law if the purpose of the invention-creation itself does not violate the law of the state, but because it is abused. For example, weapons of all kinds for defence purposes, poisons of all kinds for medical purposes, narcotics, sedatives, stimulants and chess and cards for recreational purposes. In addition, according to the Paris Convention for the Protection of Industrial Property rights, which China acceded to, if only because the law prohibits the sale of patented products or the sale of products manufactured by patented methods, then the invention of such products or the invention of methods used to make such products shall not be denied the grant of patent rights.
2)Inventions and creations that violate social morality:
For example, inventions-creations such as designs containing violent or obscene pictures or photographs, artificial sexual organs or their substitutes for non-medical purposes, and methods of mating between humans and animals are against moral custom and cannot be granted patent rights.
3)Inventions that are harmful to the public interest:
For example, a patent cannot be granted for an anti-theft device that blinds a thief or blinds a person who uses it inadvertently; nor may a patent be granted for an invention-creation which, by reason of its exploitation or use, would cause serious environmental pollution. However, an invention should not be considered an invention-creation that is harmful to the public interest if it is likely to cause harm simply because it has been abused, or if it has some disadvantages while producing positive effects.
3.Analysis of Article 25 of the Patent Law:
According to article 25 of the Patent Law, the following conditions cannot be granted a patent right?
1.Scientific discovery. It refers to the discovery and understanding of unknown substances, phenomena, change processes and their characteristics and laws that have objectively existed in nature.
2)Rules and methods of intellectual activity.It refers to people's thinking movement, is the means or process of mental and intelligent activities of the human brain, it is an abstract thing.Its function is only to guide people to think, judge and remember the information expressed by it. It does not need to adopt technical means or abide by natural laws. It does not have technical characteristics, so it cannot be granted patent rights.For example, traffic rules, dictionary layout methods, information retrieval methods, quick arithmetic or formula, rules and methods of various games, entertainment, competition rules, etc., cannot be patented.
3.Diagnosis and treatment of diseases.The so-called "diagnostic method of disease" refers to the whole process of identifying, researching and determining the cause or lesion state of living human or animal.
4.Animal and plant species.It refers to new species of plants and animals developed by biological methods.Animals and plants are living objects, which are naturally generated rather than created by human beings and cannot be produced by industrial methods. Therefore, they are not creative and practical in the sense of patent law, so they cannot be granted patent rights.
5.Substances obtained by means of nuclear transformation.It mainly refers to the use of accelerator, reactor and other nuclear reaction devices, through nuclear fission, nuclear fusion and other methods to obtain elements or compounds. Because the material obtained by nuclear transformation method is related to the national economy, national defense, scientific research and public life of the major interests, national security, it should not be disclosed. And most countries do not grant patent rights to this kind of material.
6.A design of a graphic design, color, or a combination of both that serves primarily as a logo. With regard to graphic designs, such as bottle stickers, that are primarily used for marking purposes, such as graphic designs, colors or a combination of both, their function is to distinguish a specific product from similar products, and there is no improvement in the appearance design of the product itself. Granting its patent right is not conducive to the improvement of the overall level of China's appearance design.