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A Comparative Study of Non-Obviousness Requirement in Patent Law
|關鍵字:||專利要件;patentability;進步性;具有通常知識者;問題解決法;先前技術;建議原則;輕易完成;輔助性判斷因素;non-obviousness;having ordinary skills in the pertinent art;problem-solution approach;the prior art;suggestion test;obvious;secondary considerations||出版社:||科技法律研究所||摘要:||
進步性是專利要件之一，若申請專利之發明為所屬技術領域中具有通常知識者，依申請日前之先前技術所能輕易完成時，該申請專利之發明即無法取得專利。惟應如何判斷，美國專利實務係以1966年，美國聯邦最高法院在Graham v. Deere一案所揭櫫之判斷要素及原則為標準；歐洲專利局則以「問題解決法」為判斷標準，兩者各有所長。本論文從比較法觀點探討其等實務及學理上所運用之原則、方法，比較其間之差異，再回溯研究我國之情況。
The non-obviousness is a condition of patentability. The requirement of the non-obviousness means that an invention shall not be granted if one who has ordinary skills in the pertinent art can easily accomplish it and if it utilizes technology or knowledge known prior to applying for patent. However, how to assess the non-obviousness, it refers to the principles and factors defined by the Supreme Court of United States of America in a case of Graham v. Deere in 1966.The European Patent Office adopts the “problem-solution approach” to assess the non-obviousness. The thesis attempts to inquire into their respective advantages, the principles, the factors, and comparison on their differences. Then, we review the situation of Taiwan and examine the principles and the factors of the advanced countries for the reflection on Taiwan's non-obviousness.
In the paper, the non-obviousness requirement of determination in Taiwan is quite similar to European and American law, no matter the factors or the principles. On the perspective of the factors, it may be necessary to add “the differences between the claims and the prior art” in order to reform the patent practice to avoid the comparison of differences. On the factor of level of ordinary skill in the art, we should consider to approach the concept of “teamwork” according to the European Patent Convention. To resolve the meaning of “obvious” perspective, it refers to the standard of the European Patent Convention examination that place “obvious” factor as the first consideration and “ suggestion test ” as the second, thus the “indicators” as the last. On the perspective of “secondary considerations”, they are useful in case of doubt about the non-obviousness.
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