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Intellectual Property and Commercial Court


2011 Xing Zhuan Su Zi No. 113

Decision No. 2011 Xing Zhuan Su Zi No. 113
Date April 26, 2012
Decision Highlight

Determination of the inventive step of a new model patent is based on prior art. Determining whether a patent application meets inventive step is based on existing technology in the industry. The key point is whether the difference between the creation of a patent and the prior art can be easily achieved. When the difference is being determined, an overall judgment should be made according to the creation of a patent application as a whole. The consideration is not based on individual elements. In other words, determining whether the requirement of inventive step is met is not to compare each and every element of the creation of a patent application individually with prior art. Instead, the determination is an overall judgement on the creation or invention recited in each claim of the patent scope. The examination focuses on whether a person of general knowledge related to the technology or skill in the art considers the creation or inention obviouse in view of prior art, or whether she can rely on pre-filing date prior art to easily achieve the creation or invention. As a result, determination of whether the requireemnt of inventive step is met may rely on combination of one or more references.


Prior art, inventive step, patent scope, patent opposition, overall judgmenet

Relevant statutes Article 93, Article 94, Paragraph 1, Subparagraphs 1 & 4, and Article 107, Paragraph 1, Subparagraph 1 of the Patent Act as amended and issued on Feburary 6, 2003
  • Release Date:2020-11-13
  • Update:2020-12-07