Part II Interpretation Chapter II Conditions for Granting Patent Rights

Article 22 An invention or utility model for which a patent right is granted shall be novel, creative and practical.
Novelty means that no identical invention or utility model has been published in domestic and foreign publications, used in China or known to the public in other ways before the application date, and no identical invention or utility model has been applied to the patent administration department of the State Council by others and recorded in the patent application documents published after the application date.
Creativity means that compared with the existing technology before the filing date, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress.
Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
[Interpretation] This article provides the essential requirements for inventions and utility models for which patents are granted.
1. According to the provisions of this article, inventions and utility models granted patent rights must be novel, creative and practical, which is commonly called the "three characteristics" of patents. This is a norm generally adopted by patent laws in various countries, and it is also a norm confirmed by the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization.
Second, the second paragraph of this article defines the meaning of "novelty", that is, no identical invention or utility model has been published in domestic and foreign publications before the filing date, used publicly in China or known to the public in other ways, and no identical invention or utility model has been filed with the patent administration department of the State Council by others and recorded in the patent application documents published after the filing date. Includes three meanings:
1. The time limit for judging whether there is novelty is based on the filing date of the patent application. This is also the standard stipulated in the patent laws of most countries in the world. According to the relevant provisions of this law, the date when the patent administrative department of the State Council receives the patent application documents is the filing date. If the application documents are mailed, the postmark date sent shall be the application date. Where priority is enjoyed, it refers to the priority date. Inventions and utility models for which patents are applied are new technologies, that is, they are novel, as long as they are not available in the prior art or are not known to the public. Existing technology refers to the technical content that the public can know before the application date. The technical content in a confidential state is not known to the public, so it does not belong to the existing technology.
2. To judge whether it is novel, whether the invention or utility model for which the patent is applied has been made public and become known technology shall prevail. Where the same invention or utility model has not been publicly published in domestic and foreign publications, publicly used in China or known to the public in other ways before the filing date, it meets the requirements of novelty. The "same invention or utility model" mentioned here means that the technical fields and purposes are the same, the technical solutions are essentially the same, and the expected effects are the same. The "publicity" mentioned in this article includes: (1) publication publicity. Refers to the fact that the same invention has been recorded in official publications. The geographical scope of publication is the whole world, including both domestic and foreign countries. Before the filing date, as long as any publication in the world has published the same invention and creation, the invention and creation is not novel. Publications include all kinds of patent documents, magazines, books, academic papers, textbooks, technical manuals, etc., as well as all kinds of microfilms, films, photographic negatives, tapes, records, CDs, etc. made by means of electricity, light and photography. Publications are not limited by geographical location, language or acquisition method, nor by age. For some publications marked with the words "internal publications", if confidentiality is required within a specific scope, they are not public publications. (2) Use publicity,It refers to the disclosure of the technology to the public due to the application of this technology, such as the manufacture, sale, use, public display and performance of new products. The scope of public use is limited to China. (3) otherwise known to the public. This mainly refers to other public ways that can be known to the public. Including oral publicity, such as reports, seminars, radio or television broadcasts, etc., which can make the public know the technical content. The scope of this public way is also limited to China.
3. Whether the same invention or utility model has been filed by others and recorded in the patent document, which is customarily called "conflicting application". Since only one patent right can be granted for an invention-creation, if someone else has filed an application for the same invention or utility model with the patent administration department of the State Council before the filing date, and it is recorded in the patent application documents published after the filing date, that is, in case of conflicting application, in order to avoid repeated authorization of the same invention or utility model patent application, the invention or utility model applied for first is regarded as the existing technology of the invention or utility model applied for later, and the latter application is not novel.
Third, the third paragraph of this article stipulates the meaning of "creativity", that is, compared with the existing technology before the filing date, the invention has outstanding substantive characteristics and remarkable progress, and the utility model has substantive characteristics and progress. The "existing technology" mentioned here refers to the technology that was publicly published in domestic and foreign publications, publicly used in China or known to the public in other ways before the application date, that is, the existing technology.
1. To judge whether an invention for which a patent is applied meets the criteria of creativity is whether the invention has "outstanding substantive characteristics" and "remarkable progress". The "outstanding substantive features" mentioned here means that the invention has obvious essential differences compared with the prior art, which is not obvious to the ordinary technical personnel in the technical field to which the invention belongs. He cannot directly obtain all the necessary technical features of the invention from the prior art, nor can he obtain them through logical analysis, reasoning or experiment. If the invention can be obtained in the above way, the invention does not have outstanding substantive characteristics. The "remarkable progress" mentioned here means that from the technical effect of the invention, it has made great progress compared with the existing technology. Including: (1) the invention has solved the technical problems that people have been eager to solve, but they have never been successful; (2) The invention overcame the technical prejudice; (3) The invention has achieved unexpected technical effects; (4) The invention was a commercial success.
2. To judge whether a utility model for which a patent is applied meets the creative standards, the requirements are lower than those for invention patents, as long as the utility model has substantial characteristics and progress, and it is not required to be "prominent" or "remarkable".
Four, the fourth paragraph of this article defines the meaning of "practicality", which means that the invention or utility model can be manufactured or used, and can produce positive effects. Includes the following meanings:
1. It can be manufactured. As a technical scheme of invention or utility model, it should be achievable, that is, if the purpose of the invention is to manufacture a product, then the product must be manufactured according to the technical scheme of the invention.
2. be able to use it. As an invention or utility model, the technical scheme must be able to be implemented. If the invention is a technological method, it should be used in industrial production.
3. It can produce positive effects. Compared with the prior art, the economic, technical and social effects of the invention or utility model should be positive and beneficial. Inventions or utility models that are obviously useless, divorced from social needs, seriously pollute the environment, seriously waste energy or resources, and harm personal health are not practical.
4. It must be reproducible. As a technical scheme, the invention or utility model should be realized repeatedly. That is, technicians in the technical field can repeatedly implement the technical scheme adopted in the patent application to achieve its purpose according to the disclosed technical content. If it is a product, it should be able to be manufactured repeatedly; if it is a method, it should be able to be used repeatedly.

Article 23. The design for which the patent right is granted shall be different from or similar to the design that has been publicly published in domestic and foreign publications or publicly used in China before the filing date, and shall not conflict with the legal rights previously obtained by others.
[Interpretation] This article is about the requirements for granting a patent right to a design.
First, the design should be novel. That is, it is different from and not similar to the design that has been published in domestic and foreign publications or used publicly in China before the application date. The scope of its publication is domestic and foreign, and the scope of its public use is domestic. The "public use" mentioned here means that there is no identical physical object for public sale or use before the application date. Therefore, in terms of novelty, it is the same as the standard of invention and utility model.
Second, the design should be creative. That is, it is not the same as or similar to the existing design. "Different" here means different products and different designs. Different products mean that the uses and functions of products are not exactly the same. Different designs mean different shapes, patterns and colors. It should be pointed out that the same design, when used in different products, should not be considered as the same appearance design.
Three, shall not conflict with the legal rights obtained by others in advance. Here, "the legal rights obtained in advance" refers to the legal rights that others have obtained before the designer applies for a patent. This prior right mainly refers to: trademark right, copyright (mainly refers to art works), portrait right and so on. Because design refers to a new design that is aesthetically pleasing to the shape, pattern, color or their combination of products and is suitable for industrial application, it is easy to conflict with trademark rights, copyright and other rights. Therefore, legal provisions shall not conflict with these rights. That is, if someone else has obtained the above legal rights in advance, the applicant for a patent for design shall not obtain a patent right for the design of the product with these trademarks and works of art. This provision is a new addition to this revision of the Patent Law, with the purpose of avoiding conflicts of rights, causing disputes and harming the interests of those who have previously obtained legal rights.

Article 24 An invention-creation applying for a patent shall not lose its novelty in any of the following circumstances within six months before the date of filing:
(1) It was exhibited for the first time at an international exhibition sponsored or recognized by the China Municipal Government;
(2) It was first published at a specified academic or technical conference;
(three) others disclose the contents of the applicant without the consent of the applicant.
[Interpretation] This article is about the exception that the disclosure of inventions and creations does not lose novelty.
1. According to the provisions of Article 22 of this Law on the novelty of inventions and utility models, it is a basic principle that an invention for which a patent is applied will lose its novelty and cannot be patented if it has been made public before the date of application. But this basic principle is not absolute, and there are exceptions. The patent laws of many countries stipulate that the invention-creation can be disclosed without losing novelty within a certain period before the application date, that is, the so-called disclosure without losing novelty. This article is the patent law of our country’s disclosure of not losing novelty.
2. The time limit for publication without loss of novelty shall be within six months before the date of filing. This period is also called grace period, that is, within six months before the date of application, the application will not lose its novelty if the circumstances stipulated in this law occur. If you file a patent application after this time limit, it will no longer be novel and should not be granted a patent right.
Three, no loss of novelty, the provisions of this article are three:
1. It was exhibited for the first time at an international exhibition sponsored or recognized by the government of China. Including two meanings: First, it must be an international exhibition sponsored or recognized by the China government. International exhibitions hosted by the government of China include international exhibitions hosted by various departments in the State Council or the State Council or organized by other organs or local governments with the approval of the State Council. International exhibitions recognized by China government are those held at home and abroad, which are not held by China government, but are recognized by China government. Second, it must be an international exhibition, that is, besides the products of the host country, there should also be exhibits from foreign countries. Inventions and creations exhibited in international exhibitions that are not sponsored by the China government or recognized by the China government will no longer be novel.
2. It was first published at a specified academic conference or technical conference. The "academic conference or technical conference" mentioned here has certain restrictions and must be "prescribed" with a certain scale and specifications. According to the detailed rules for the implementation of the Patent Law, it refers to an academic conference or technical conference organized by the relevant competent authorities in the State Council or national academic organizations. It does not include academic conferences or technical conferences organized by ministries or commissions of the State Council or national societies. Inventions and creations published for the first time at academic conferences or technical conferences that meet the above requirements shall not lose their novelty.
3. Others disclose the contents without the consent of the applicant. That is, the disclosure of others against the applicant’s original intention. The ways for others to disclose the contents of their inventions and creations without the consent of the applicant may include: others disclose the contents of the applicant’s inventions and creations without complying with the express or implied confidentiality obligations; Others use threats, fraud, theft, espionage and other improper means to learn the content of the invention and creation from the inventor or any other person who has been told by him and then make it public. The disclosure of these two cases is against the applicant’s original intention and is illegal.

Article 25 No patent right shall be granted for the following items:
(1) scientific discoveries;
(2) Rules and methods of intellectual activities;
(3) Methods of diagnosis and treatment of diseases;
(4) Species of animals and plants;
(5) substances obtained by nuclear transformation.
A patent right may be granted to the production method of the products listed in Item (4) of the preceding paragraph in accordance with the provisions of this Law.
[Interpretation] This article is about the provisions on the results of intellectual activities that do not grant patent rights.
First, the purpose of establishing a patent system is to protect the achievements of intellectual activities within the legal scope. Inventions and creations that are novel, creative and practical, and meet other conditions stipulated in the patent law, belong to intellectual achievements protected by patents, and can be patented according to law. At the same time, according to the provisions of this article, the achievements of the following kinds of intellectual activities do not belong to the scope of patent protection and no patent right shall be granted:
1. Scientific discovery. It refers to the discovery and understanding of unknown substances, phenomena, changing processes, their characteristics and laws that have objectively existed in nature. These inventions and understandings are not a technical solution in themselves, not inventions in the sense of patent law, and cannot be directly implemented to solve specific technical problems in a certain field, so they cannot be granted patent rights.
2. Rules and methods of intellectual activities. It refers to people’s thinking movement, which is an abstract thing and a means or process for people’s brain to carry out spiritual and intelligent activities. It only guides people to think, judge and remember the information they express, and it does not need to adopt technical means or abide by the laws of nature, and it does not have technical characteristics, so it cannot be granted a patent right. For example, traffic rules, dictionary arrangement methods, information retrieval methods, speed algorithms or formulas, rules and methods of various games and entertainment, and competition rules cannot be patented.
3. Diagnosis and treatment of diseases. It refers to the direct implementation of living human beings or animals for the purpose of treating diseases, which cannot be monopolized by a few people because it involves human health. The "diagnosis method of disease" mentioned here refers to the whole process of identifying, studying and determining the cause or focus state of living human or animal. The "treatment of diseases" mentioned here refers to the process of blocking, alleviating or eliminating the cause or focus in order to restore or obtain health for living human beings or animals. This kind of treatment or diagnosis method cannot be manufactured or used in industry, and it is not practical, so it cannot be patented. For example, ultrasonic diagnosis, acupuncture, anesthesia, massage and other treatment methods, surgical methods and so on. The TRIPS agreement also stipulates that members can exclude diagnostic methods, therapeutic methods and surgical methods for treating humans or animals from patentability.
4. Animal and plant varieties. Animal and plant varieties refer to new varieties of animals and plants cultivated by biological methods. Animals and plants are living objects, naturally generated, products of nature, not created by people, and cannot be produced by industrial methods, so they do not have creativity and usability in the sense of patent law, so they cannot be granted patent rights. However, animal and plant varieties can be protected by laws other than the patent law. In this regard, the TRIPS agreement stipulates that members should protect new plant varieties by patent system or effective special system, or by any combination system. For the protection of new plant varieties, many countries in the world have also formulated corresponding laws and regulations. In 1997, the State Council promulgated the Regulations on the Protection of New Plant Varieties in People’s Republic of China (PRC), which stipulated the definition of new plant varieties, the content and ownership of variety rights, and protected new plant varieties that met the regulations.
5. Substances obtained by nuclear transformation. Mainly refers to the use of accelerators, reactors and other nuclear reaction devices, through nuclear fission, nuclear fusion and other methods to obtain elements or compounds. Because the substances obtained by nuclear transformation are related to the great interests of the country’s economy, national defense, scientific research and public life, and are related to national security, it is not suitable for publicity, and most countries do not grant patents to such substances.
2. Patents may be granted for the production methods of animal and plant varieties in accordance with the provisions of this Law. The "production method" mentioned here refers to non-biological methods, excluding mainly biological methods for producing animals and plants. This kind of method can be granted a patent right because of the intervention of technical elements and the main control or decisive role in the ultimate goal or effect. Patents can be obtained for microorganisms and microbial methods.