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Intellectual Property and Commercial Court

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2014 Min Zhuan Su Zi No. 68

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Decision No. 2014 Min Zhuan Su Zi No. 68
Date November 28, 2014
Decision Highlight

According to Article 95 of the Patent Act in 2004, where an invention claimed in a patent application for utility is identical to an invention or utility model disclosed in the description, claim(s) or drawing(s) of an earlier-filed patent application for invention or utility model which is laid open or published after the filing of the later-filed patent application, the later-filed utility patent shall not be granted. The earlier-filed patent application invention claimed in a patent application for utility which is laid open or published after the filing of the later-filed patent application originally does not constitute a prior art. However, the Patent Act considers the contents disclosed in the description, claim(s) or drawing(s) of an earlier-filed invention or utility model application to be a prior art. Provided that the description, claim(s) or drawing(s) of the later-filed patent application is identical to those of the earlier-filed patent application, it will be deemed not satisfying the novelty requirement. To determine whether the novelty was deemed not to be satisfied, the comparison shall be made between the description, claim(s) and drawing(s) of a prior art with the description, claim(s) and drawing(s) of the disputed patent respectively. If the prior art fully discloses all technical features of any claim(s) in the disputed patent, the claim(s) is deemed not satisfying the novelty requirement.

Keywords

Fictitious Novelty

Relevant statutes Article 95 of the Patent Act amended and promulgated on February 6, 2003
  • Release Date:2020-11-13
  • Update:2021-07-20
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