Patent Three Remarkable Characteristics
Patent Laws of different countries vary greatly. Most countries and China demand that new inventions have to possess novelty, advancement and industrial applicability. Novelty means that before the date of application or priority day, the invention is not among the existing technology, i.e. it is not publicly known or used. Those that are opened in written form, in tape, in record, photographs, oral form or used, lose their novelty. Some countries adopt global novelty; some adopt national novelty; some have the notion of embracing the global scope as the standard while applying the national standard. Advancement also called creativity refers to that the invention at the time of application is more advanced than the existing technology and its degree is not so obvious to the ordinary professionals in that technological area. Applicability means that the inventions can be produced and used in industries.
The main parts of the Patent Law are two kinds: the occupational inventions accomplished from performing the company’s task or the inventions that are mainly achieved by utilizing the company’s material conditions, whose right of patent application belong to the company; no occupational inventions whose right of patent application belong to the inventors or designers. The United Kingdom had enacted the first Patent Law in 1474; the United Stated in 1790; France in 1791; Netherland in 1817 and Germany in 1877 had promulgated their own patent laws successively. In the world more than 150 countries and regions have their own patent system and the patent laws are gradually internationalized. For example, the Paris Convention taken effect in 1884, the Patent Cooperation Treaty signed in 1970, the International Patent Classification Agreement signed in 1971, the European Patent Convention signed in 1973, and the European Communities Patent Convention made in 1975, the Luxembourg Convention signed inn 1975 and the African Patent Organization signed in 1977 and so on.
At present in various countries’ patent laws there are mainly three kinds of ways to grant patents as bellows:
1, it is registration system. The patent office only processes the formal examination of the patent applications. If the formalities and papers are all complete, it will be registered and the patent will be granted without any examination as to substance. The patents from the registration system usually are not of high-quality.
2, examination as to substance system, i.e. there is not only the formal examination, but also the examination over the inventions’ novelty, advancement and practicability. This system can guarantee the patents’ quality; but it demands large quantities of high-level inspectors and can easily result in backlog.
3, deferred examination system which to those applications that passed the formal examination, publicizes them and protect them temporarily after certain time period since the date of application; in some years after the publication the applicator demands the patent office to proceed the substantial examination. Those who failed to ask for substantial examination would be taken to withdraw the application. This system could reduce the burdens of examination. It is the system that China adopts.
The Patent Law of some countries (such as US) doesn’t demand the patent to be executed forcefully. But most countries, especially many developing countries, legally demand the patentee to apply the patent in that country dutifully. The implementation usually is understood in this way: the product patent refers to produce this invention product; the process patent refers to use this new method in product manufacturing. The patent can only effect positively to the development of this country’s industry and technology through enforcement. Generally, the patentee allowing others to practice his patent can be thought to have enforced his patent. But importation is not enforcement. The patent laws of many countries prescribe that after 4 years since the date of application or 3 years since the patent-grant, the patent-granted invention is not executed or fully executed without just cause would be asked to implement forcefully by the authorities according to the application, i.e. the licensee implement the patent after certain payment. If two inventions rely on each other, the enforcement of one invention depends on the enforcement of the other but no permission was gained from the patentee, some countries’ patent law prescribe that forceful implementation of the other invention can be issued according to the application of one invention. If the inventions are closely related to the country’s national defense, national economy and public health, it could be permitted that other people use the invention after payment; even the country can requisition with some reward. Chinese Patent Law has special prescription for the permission of forceful enforcement of patent.
The patent Law has rules about the problems of patent infringement and lawsuit and so on. Many countries have enacted some effective rules over the implementation of the Patent Laws. In order to avoid the international infringement of patents, a series of international pacts were issued since the 19th century. Chinese Patent Law prescribes that the right of patent should be protected; that the infringer should compensate for loss and of those cases of gross violation criminal responsibility shall be allotted according to the law.
Patent Application Needed Documents
I.The retrieve files and background information related to the applied program. For example, the pre-patent files, documents, periodicals, graph papers, and so on that are close or similar to the applied program. It would be better to precede patent-retrieve before entrusting application of Chinese invention patent. Or else, the applied program may easily be rejected in the process of application.
II.The written technical materials of the applied program. These materials shall contain as follows:
1, the technical area and the applied range of the applied program， and the identical or effect-similar technical measures, technical means, ways and methods.
2, the purpose of the applied program and those technical problems needed to be solved.
3, to describe in detail the technical measures and features in realizing the purpose in words and attached maps. For example, if the applied program was a product, the technical measures and features refer to the structure of the product, the joint, distribution and correlations of various parts and their function in this program, the compound mode and the detailed dynamic system of various parts, that the applied is a method. Technical measures and technical features refer to industrial art, technological parameter and the related detail in the art. In addition, at least one particular example of the applied program should be provided (this particular example does not mean model or material object, but the drawings and word exposition demonstrating the particular example. The model or material object can only be provided to illustrate the theme of the application when the technical measures of the applied program can not be improved through maps and words.)
4, the experimental data, result or the phenomena appeared in the experiment of the applied program.
5 combine the definite case and the experimental conclusion to illustrate objectively the advantages and shortcomings of the invention. If there is no experimental data or result, the inventor should analyze the invention objectively and deduce the possible merits and defects.
6, the distinctness of the applied program compared with the existing technology and technical features in the inventor’s mind.
7, the contents that should be considered technical secrets by the inventor