Research On The Examination Standards Of The Same Invention-Creation In The Patent Granting Procedure

The implementation of the strategy of strengthening intellectual property rights has promoted the development of patent protection.High-quality patents cannot be produced without a rigorous and scientific patent examination procedure.China’s Patent Law stipulates the examination standards for the same invention-creation,including the system of prohibition of repeated authorization and the examination of novelty.However,the examination standards of the same invention-creation are not consistent in the system of prohibition of repeated authorization and novelty examination.The establishment of different examination standards for the same concept in the patent system has caused a number of problems in practice with the examination rules for the same invention-creation.The confusion of the applicable standards not only affects the examination of the same invention-creation,but also increases the difficulty of resolving rights disputes and the investment of administrative and judicial resources at a later stage.Therefore,this paper focuses on the problems faced by the examination of the same invention-creation,and takes the analysis of the legal value of the prohibition of repeated licensing system and novelty examination as the starting point to propose reasonable suggestions for improving the application of the examination standard of the same invention-creation in the patent licensing procedure in China.The main part of the paper consists of five chapters.Chapter 2 starts from analyzing the relevant concepts of identical invention-creation and the legal value of each examination rule,and lays the foundation for the theoretical study of examination rules.At the same time,the analysis of actual cases brings out the problems in the examination of the same invention-creation,namely,the unclear connotation of the same invention-creation and the inconsistent examination standards.Chapters 3 and 4 analyze the rules of examination and determination of the same invention-creation in the patent grant and post-grant procedures respectively.It familiarizes with the generation of repeated grant and the application of novelty standard,and analyzes the reasons for the inconsistency of the two examination standard provisions.Since the post-grant procedure is the takeover of the grant procedure,the omissions in the prior procedure can be corrected through the post-grant procedure,which is closely related to the application of the examination standard for the same invention-creation.Therefore,to unify the examination standards for the same inventions and creations,we should look at the whole patent grant and post-grant procedure and make a good connection between the before and after procedure.Chapter 5 uses the method of comparative study to obtain relevant experience in foreign countries.Among them,in the U.S.patent system,the examination standards for the same invention-creation under the repeated grant system and novelty are also different.However,its statutory repeated grant and non-obvious repeated grant and novelty examination do not lead to confusion in the applicable standards.The definition of "the same" in the Japanese patent law and the special provisions of conversion protection can provide reference for the improvement of the patent system in China.Chapter 6 summarizes the theoretical analysis and experience of the previous section and proposes suggestions for improvement.That is,the examination standard of the system of prohibition of repeated authorization should be retained in order to realize the legal value of the system of prohibition of repeated authorization.At the same time,the application of the two examination rules should be distinguished by modifying the conceptual expression of the same invention-creation in the system of prohibition of repeated authorization,so as to avoid the confusion of the examination standard in practice.