Objective Judgment Of Patent Creative Comparative Study

Quality of patents has become an important issue in patent system reform, and what is closely related with the quality issue is the standard of inventive step. Inventive step has always been the core of the patent system. As shown by a comprehensive survey of the patent history in the world, inventive step should be called the "genius" of patent law. Theoretically, inventive step is the basic justification of patent system, and practically how to determine the standard of inventive step objectively is the hardest thing to grasp, therefore it has become the focus of the patent examination and litigation. Among the three patentabilities of novelty, inventive step and utility, the assessment of inventive step is most subjective. In order to make the standard of inventive step objective, the United States proposed the standard of "non-obviousness" assessment. However, the "non-obviousness" standard did not end the uncertainty of patent law concerning inventive step, because the non-obviousness standard itself is "non-obvious". At present, technology develops rapidly in our country, and the amount of patent applications increases rapidly also, therefore how to grasp the standard of inventive step is an important issue that needs research deeply.This thesis is divided into four chapters, in which the objectivization of inventive step is discussed comparatively, and a policy choice of china is proposed about the standard of inventive step.The first chapter is "the general theory about inventive step of patent". The first section discusses the status and function of inventive step in the various justification theories of patent system, including natural right theory, incentive theory, contract theory, from which the important function of inventive step requirement in the patent system can be analyzed. The second section discusses the rules to objectivize inventive step requirement, and analyzes the social economic basis of the objectivization of inventive step. The third section discusses the problem of over-objectivization of inventive step, including its appearance, its influence, and the proposed ways of increasing the standard of inventive step. The second chapter is "the objectivation tendency of inventive step assessment in the U.S.". The first section discusses the historical evolvement of inventive step requirement in the U.S., including the establishment of inventive step requirement and the evolvement to the "non-obviousness" standard. The second section analyzes the method of objectivizing inventive step, including the "Graham method", "TSM test" and its rigid application. The third section discusses the Supreme Court's decision of KSR case, and the recent revision about inventive step in the Manual of Patent Examining Procedure issued by USPTO on October 10th, 2007.The third chapter is "the objectivization tendency of inventive step assessment in Europe and Japan". The first section discusses the objectivization tendency of inventive step assessment in Europe, especially the "problem-solution" method, and analyzes the objectivization of the determination of the "closest prior art", the determination of the "objective technical problem" and the "non-obviousness" assessment. The second section discusses the objectivization of inventive step assessment in Japan, including the definition of inventive step, and the logic assessing "whether it is easy to think".The fourth chapter is "the comparison on the assessment methods of inventive step and the policy choice of China". The first section compares the assessment methods of inventive step, including the "person having ordinary skill in the art", and the "non-obviousness" assessment methods. The second section introduces the assessment method of inventive step in China and compares it with other countries. The third section traces the historical revisions of Guidelines for Examination on the standard of the inventive step in China and proposes a policy choice of china about the standard of inventive step.