Pages Navigation Menu

Inventions Defined Under PRC Patent Law

Inventions Defined Under PRC Patent Law

Quite recently, the State Intellectual Property Office (SIPO) has indicated that the applications being filed for the protection of patents are not compliant with the scope of the second paragraph of the second article of the PRC Patent Law. The SIPO emphasized on this with regards to several cases. Here, “invention” has been defined as “any new technical solution relating to a product, a process, or improvement thereof”. Therefore, it is no way a self explanatory statement which can elucidate the concerned concept. There are terms in it, such as “technical solution” which need to be illustrated well, for defining the scope with precision.

However, terms, such as “technical effect”, “technical feature”, “technical problem” and “technology” has been defined clearly in the Guidelines, Regulations or the Patent Law. Adding to the first paragraph of the second article in the Patent Law, the first chapter of the second part of the Guidelines for Patent Examination states that the term “technical” is used to represent an embodiment of technical features. It also states that if a solution does not employ technical means for solving a technical problem and for obtaining technical effects, which conform to the natural law, it will not be included in the scope designated in the second paragraph of the second article of the PRC Patent Law.

According to the guidelines, the applicant should first consider whether the invention provides for a solution which can be included within the scope of the second paragraph of the second article of the Patent Law. In addition to the above, the applicant has to consider if the technical solution has been defined as “a collection of technical means employing natural law to solve technical problems.” The analysis should be performed while considering whether the “technical solution”, which has been incorporated in the innovation, has managed to employ technical means, solve technical problems and achieve technical effects which conform to the nature laws. The claim should be assessed in complete entirety to effectively determine if technical means have been employed for the invention.

Case Study

The product in question here is an ornamental umbrella fitted with a transparent head. The head bears a cavity which is airtight in nature. The cavity contains an anti freezing solution which is aseptic. And, there is a free flowing, three dimensional decorative item immersed in the fluid. The purpose of the invention here is to make the umbrella appear more attractive to the customer.

The Analysis of the Case

Since there is a decorative three dimensional piece involved, the application is believed to be employing technical means. Apparently, the patent application aims towards solving the technical problem by facilitating a more attractive product. However, in the process, it modifies the structure of the umbrella. It does so by using technical means for filling an airtight cavity of transparent nature within the umbrella, with a liquid, along with a tiny ornamental piece.

This technique helps in displaying the ornamental piece, thus solving the technical problem of making it more appealing. Therefore, the visible aesthetic effect of the ornamental piece floating in the liquid creates a technical effect. The beauty quotient of the umbrella is derived from the visual effect pertaining to the technical solution. It cannot shield its features in constituting technical solutions. Consequently, the technical solution has been formed by the features which have been specified in the claim.

Here, the structural feature of the umbrella head has been utilized as the technical feature. This technical feature has been exploited with the aid of technical means which in turn facilitates an ideal solution for the technical problem. And this is done by successfully displaying the quaint ornamental piece, swimming in the transparent head fitted into the umbrella. Moreover, this effect which has been naturally achieved is a technical effect. Therefore, this is an ideal example to prove that when technical means is made up of technical features, the problem it solves is essentially a technical problem. In addition to this, the effect which is arrived upon is a technical effect which conforms to the nature laws. Hence, it can be deduced that most inventions related to machinery can constitute a technical solution when the technical means involves technical features.

Note: The preceding is a summary of an article found though our research and is provided here with editorial comment for members only. Please see the full article at this link: http://www.chinalawinsight.com

The New Asia Innovation Team

404