论我国发明专利创造性之“显著的进步”

The "Notable Progress" in the Inventiveness of Chinese Patent

我国专利法规定的创造性,包括突出的实质性特点和显著的进步两个要件,但随着创造性判断方法的发展,特别是审查指南引入三步法,“显著的进步”这一要素已经被“吸收”进入了“突出的实质性特点”之中,造成理论上逻辑的不严密和实务中的虚化,所以应当对该款规定修订为非显而易见性。

There are two requirements,namely prominent substantive feature and notable progress,in the inventiveness stipulated in the China'Patent Law.However,with the development of determination method of inventiveness,especially when the three-step approaches were introduced into the Guidelines for Patent Examination,such the requirement as the notable progress has been assimilated into the prominent substantive feature,which makes it illogical in the theory and weakened in the practice.Thus,the inventiveness stipulated in this article shall be revised as"non-obviousness".