According to Paragraph 2 of Article 22 of the Patent Law,in judging the novelty of an invention or utility model, any patent application document or publication of patent documents concerning the same invention or utility model filed with the Patent Office before the filing date and published after the filing date (including the filing date) by any entity or individual damages the novelty of the patent application filed on the filing date. Such a patent application that damages novelty is called a conflicting application.
To determine whether there is a conflicting application, it needs to consult not only the claims of the prior patent or patent application, but also its specification, which contains the appended drawings, i.e. the full text shall prevail.
Conflicting applications also include international patent applications that have entered the National stage in China if the following conditions are met.
"Conflicting application" means only an application filed before the filing date, and does not include any application for a patent for identical invention or utility model filed on the filing date.
In everyday patents, we make it clear that the conflicting application is not prior technology and therefore cannot be used to evaluate creativity. But we haven't delved into why conflicting applications fail to evaluate creativity.
It is unfair to evaluate the creativity of X for an invention without seeing the previous public document Y on the application date, which makes people have no correct expectation.
However, since the conflicting application does not belong to prior technology, why can novelty be evaluated
This question needs to be considered from the principle of patent law.What aspects of a conflicting application must be satisfied to constitute a conflicting application?The conflicting application exists in relation to a later application and cannot exist alone.It can be understood in two aspects:The first is the time: the publication day of the earlier application X is later than the application day of later application Y;The second is substantive: X and Y belong to the "same invention" in the sense of the patent law.Only by satisfying these two aspects does X destroy the novelty of Y. X is newer than Y.
The time implications are as follows:X can be compared to Y only if the time aspect is satisfied, and then we can determine whether they are "the same invention", that is, X can evaluate the novelty of Y.
The significance of the above substantive aspects is:On the premise of satisfying the time aspect, if it is also satisfied that the two belong to the same invention, it can be concluded that X destroys the novelty of Y.
After the above simple analysis, we can see roughly why the conflicting application can be used to evaluate novelty. The principle is simple: it is required by the first application principle, the cornerstone of patent law. Since the conflicting applications are not prior technology, it is not possible to evaluate creative issues.If the novelty cannot be evaluated, it is possible that two "identical inventions" can be patentable, which undermines the principle of first application of patent law.
Therefore, it is precisely considering that the principle of first application cannot be destroyed and arrogated, and it can only solve this thorny problem by applying the effect of prior technology to the conflicting application.That is, conflicting applications can be used to evaluate novelty, but not creativity.
