Research On The Practical Basis And Effective Measures For Absolute Novelty

The novelty of patent law in general, there are about three kinds of criteria: the relative novelty standard, an absolute novelty standards and mixed standards. In various countries or regions in the world according to their own national conditions and the political, economic policies suited to their national conditions were selected novel standards. China's patent law in 2008 will be the novelty of China's patent law by the relative novelty of the standard was revised to absolute novelty standard criteria. Many scholars believe that the novelties of patent law in this modification of the criteria are not suitable for China's national conditions, and describe their academic point of view. This article is to address the new patent law on the shift in the criteria of novelty is in line with the actual situation in our country, and after the implementation of the new patent law issues arising from the feasibility of the program.In addition to the introduction and conclusion of this paper consists of four external components: First, the concepts and analysis of the absolute novelty of patent law; Second, the history and causes of the novelty of patent law in China and the world's major countries and regions; third, standard of absolutely novelty fulfills Chinese need in now; fourth, the adverse consequences and valid countermeasures.The first part, the concept and analysis of the absolute novelty of patent law, which mainly including the following. First, through he provisions of the new patent law novelty leads to the definition of the absolute novelty; and then analyzed the connotation of absolute novelty from the definition of what the patent novelty; at last, by the specific concept of the relative novelty, mixed and absolute novelty, a concrete analysis of the advantage and disadvantage of the three was made.The second part, the history and causes of the novelty of patent law in the world's major countries and regions. First, briefly description the historical conditions of novelty of United States Patent Law since its establishment; followed by a brief account of the standard history of the Japanese patent law's novelty, and a concrete analysis of the United States at different times using the appropriate standards for reasons of novelty was made. Finally, a summary of the Western European Patent Convention on the requirement of novelty and the reason.Chapter three points out that standard of absolutely novelty fulfills Chinese need in now. Firstly, expound that Chinese patent reality decides that it is conformable to adopt standard of absolutely novelty. This point can be proved from two respects: First, hi-tech ovation capacity has been improved by a large margin comparing with the past. Second, Chinese patent quality (especially the patent of invention) can not meet the demands of developed countries. Secondly, it indicates further that standard of absolutely novelty fulfills Chinese reality now. This point can be proved from two respects: First, prove the point from comparing Chinese and Japanese reality in putting standard of absolutely novelty to use. Second, there is no positive connection in adopting standard of absolutely novelty between America and China. At last, it points out it is helpful to protect domestic enterprises if we adopt standard of absolutely novelty.This part is an important point next in importance, It proves that Chinese hi-tech ovation capacity has been improved by a large margin from comparing the amount of patent application in China in recent years with that in the past. About the problem of the bad quality of patent in China, it can be analyzed from two aspects: First, compare the quality with the amount of Chinese valid patent. Second, the hold time of foreign valid patent is twice as much as that of internal valid patent. The amount of term of validity of patent up to ten years in foreign countries is six times as much as that in China. The fact proportion is more lower in China because many valid patents of invention are applied by foreign corporations or Taiwan corporations. So, when prove the point, first, draw lessons from Japan. Second, explain that there is no positive connection in adopting standard of absolutely novelty between China and which is open in foreign countries can not apply for patent in order to protect the development of Chinese medium and small-sized enterprises.Chapter four puts forward the adverse consequences and valid countermeasures. There are three adverse consequences because of adopting standard of absolutely novelty: First, the existing patent level can not meet the demands in reality. Second, the forty-eighth law of patent law is invalid. Third, it leads to invalid patent and add the patent lawsuit cost. Faced with there problems, there are two countermeasures: First, establish a reasonable managerial system of patent in order to suit with patent law. Second, improve the level of patent talents.This part is the most important part in the thesis. There are few talents in the field of intellectual property, especially the patent talents. Build a specialized evidence institution to deal with the problem happened because of the forty-eighth law of patent law. And then adjust the rules about invalid patent and the evidence system of tort action, connecting with the specialized evidence system pointed out above. On educating patent talents and building patent system, firstly, point out that the sense about intellectual property is cool in Chinese medium and small-sized enterprises, and the professionalism is lower, and tort others'patent. On the other side, big corporations are easy to be cheated in patent. For dealing with the problems above, we should build intellectual property department to complete the work of patent. Big corporations can learn lessons form EU countries to build protecting system for research and development on patent.This paper analyzes the basis for adopting the absolutely novelty in China now from standard of absolutely novelty and the legislation about absolutely novelty in main global countries. It point out how to avoid invalid patent and low the burden of corporations, Patent Reexamination Board and Beijing No. 1 intermediate people's court with combining the reality in China now. First, build an administrative system judicial system corresponding to new patent law. Second, improve the level of patent talents in Chinese corporations and the reconstruction of patent institutions in corporations.