新颖性宽限期审查中法律问题探析

Probe into Legal Issues Involved in Examination of Grace Period for Novelty

《专利法》第24条规定了不丧失新颖性的三种情况，其中第（三）项为，申请专利的发明创造在申请日以前六个月内，他人未经申请人同意而泄露其内容的，不丧失新颖性。即这种情况不构成影响该申请的现有技术。所说的六个月期限，在专利法理论中被称为新颖性宽限期。专利制度的宗旨是保护发明创造专利权，鼓励发明创造。违背申请人的意愿导致其发明创造公开，侵害了申请人获得专利权的正当权利，因而有必要在《专利法》中设置上述新颖性宽限期的例外规定。

Article 24 of the Patent Law has provided for three circumstances under which a patent does not lose its novelty, the third of which goes as this： an invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing it was disclosed by any person without the consent of the applicant. That is to say, this circumstance does not constitute the prior art affecting the application. Said six-month time limit is what is called the grace period for novelty in the theory of patent law. The purpose of the patent system is to protect the patent right for, and to encourage the generation of, inventions-creations. Disclosure of an applicant＇s invention-creation against his will infringes the applicant＇s legitimate right to obtain the patent right. It is, therefore, necessary to set forth the provisions on exception in respect of the grace period for novelty in the patent law.