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On the Judgment of "Positive Effect" in the Practicality of Patent Application

2014-1-26 09:05| Announcer: admin

一、China Patent Law "on the characteristics of practical review 
According to the provisions of Article 22 (4) of the Chinese Patent Law: Practicality means that the invention or utility model can be manufactured or used, and can produce positive effects. China's patent law for the provisions of practicality and other countries or regions of the patent law or treaty statement has a certain difference. For example, the European Patent Convention provides that if an invention can be manufactured or used in any industrial industry, including agriculture, it is of industrial utility. The provisions of the Chinese Patent Law and the European Patent Convention in terms of practicability / industrial utility have the following differences: Chinese patent law has increased the requirement to produce positive effects. 
US Patent Law, Japanese Patent Law, Patent Cooperation Treaty (PCT), Trips agreement on the practical provisions of the emphasis only on "usefulness" or "can be applied in the industry," did not have the special effect of invention and creation. 

二、The practical review of the patent practice involved in the review of the benchmark 
For the field of electromechanical, do not have practicality is mainly reflected in the "review guide" the second part of Chapter V 3.2 described in the following aspects: 
(1)No reproducibility; 
(2)Contrary to the laws of nature; 
(3)The use of unique natural conditions to complete the technical solutions; 
(4)No positive effect 
Where there is no positive effect on Article (4), the "Review Guide" contains the following: A technical proposal for a practical invention or a utility model patent application should be capable of producing the desired positive effect. Obviously useless, from the needs of the invention of the invention or utility model patent application of the technical program is not practical. But what is the "obvious useless, from the social needs"? , What can not produce "positive effect"? 

三、Involving the "positive effect" of the practical judgment 
The patent application relates to a vehicle misuse control system. The state of the art is as follows: During the driving process, you will encounter an emergency brake, the car driver in the emergency braking to vigorously stepping on the brake pedal; but sometimes the driver will mistakenly accelerate the accelerator pedal as a brake Pedal stampede, so that the car to further accelerate, causing the accident. In order to solve this problem, the patent application has given the following plan: If the misuse occurs, vigorously depress the accelerator pedal, the hydraulic control valve spool quickly crossed the first two positions, into the third output position. At the third output position, the liquid in the accelerating circuit enters the brake wheel cylinder. Apply brake torque to the vehicle to ensure safe driving. 
The trial department rejected the application, dismissed the decision that: in accordance with the provisions of national standards, passenger cars in a certain initial speed when the emergency brake, from the foot when the brake pedal to stop when the motor vehicle stopped The distance should not be greater than XX meters. The present invention is applied to the technical scheme of the present application, and it is difficult to avoid the accident before the braking occurs, and the program relies on the subjective reaction of the driver and the braking timing is different. The result is different and does not have reproducibility. 
The applicant to the Patent Reexamination Board made a request for review, the final review of the rejection of the decision. 
The trial department considers the application to be practical because of two points: (1) reproducibility; (2) positive effect. In these two points identified, the examiners have emerged on the understanding of the problem, but fundamentally, is the examiner on whether the technical program has a positive effect of the biased. In the patent application filed, since the erroneous operation of the brake structure is connected to the accelerator pedal, it is possible to give the vehicle a certain braking action when the pedal is stepped on the accelerator pedal, which is helpful for the improvement of the safety. And the examiner with additional security effects and normal braking should be compared to the effect, and then that its lack of practicality, from the logic of the lack of reasonableness. 
In fact, any technical solution can not be perfect, for example, for the technical program, in the process of driving the car because the driver as soon as possible as soon as possible to speed up, and vigorously stampede the accelerator pedal, may cause Can not quickly accelerate, or even emergency braking defects, but the defect is not enough to lead to the technical program simply can not implement or can not solve the technical problems to be resolved, can not be considered that the technical program is not practical. 

四、To sum up 
In summary, in practice, the criteria for judging usability are not the same as those of Europe, that is, this clause emphasizes "can be made or used", and the principle of "relaxed effect" is adopted. However, the literal expression of "positive results" in the written provisions of practicality is still easy to mislead and that some of the defective technical solutions are identified as non-practical applications.
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