Recently, an increasing number of opinions from the State
Intellectual Property Office ("SIPO")
indicate that applications for patent protection for some
inventions do not fall under the scope provided in Paragraph 2 of
Article 2 of the PRC Patent Law, which defines an
"'invention' as any new technical solution relating to
a product, a process, or improvement thereof." Thus, to
understand what inventions can be patented, numerous terms such as
"technical solution" must be properly defined.
The terms "technology," "technical problem,"
"technical effect," and "technical feature" are
clearly defined in the Patent Law, or the Regulations and the
Guidelines. Further to Paragraph 1 of Article 2 of the Patent Law,
Part II, Chapter 1 of the Guidelines for Patent
Examination (2010 Edition by the SIPO)
("Guidelines") further provides that
"'[i]nvention in the Patent Law means any new technical
solution relating to a product, a process, or improvement thereof.
...technical means is generally embodied by technical features...a
solution not employing technical means to solve a technical problem
to obtain technical effects in conformity with natural law does not
fall under the scope as set forth in Paragraph 2 of Article 2 of
the PRC Patent Law..."
Therefore, the Guidelines instruct an applicant to first
consider whether a solution provided by an invention is under the
scope of Paragraph 2 of Article 2 of the Patent Law and further
defines a technical solution as "a collection of technical
means employing natural law to solve technical problems." When
analyzing this definition, the following should be considered. A
"technical solution" should be construed to have employed
1) technical means, 2) solved technical problems, and 3) achieved
technical effects in conformity with the law of nature. The
entirety of the claim should be examined and analyzed to determine
whether technical means are employed.
An umbrella with an ornamental umbrella head that features a
transparent umbrella head with an airtight inner cavity, an
anti-freezing aseptic liquid is encapsulated in the inner cavity of
the umbrella head and a small free-flowing ornament is immersed in
the liquid. The description discloses that the problem the
invention intends to solve is to make the umbrella more
Because the umbrella head has a three-dimensional and dynamic
ornament, the present application employs technical means. On the
surface, this patent application aims to solve the technical
problem by making the umbrella more alluring. However, the present
invention modifies the umbrella structure by employing the
technical means of filling a transparent, airtight inner cavity in
the umbrella head with liquid and a small ornament to solve the
technical problem that displays the said ornament floating in the
umbrella head. As a result, this modification achieves the
technical effect that the ornament floating in the umbrella head
visibly and aesthetically. On the other hand, the alluring
appearance of the umbrella is merely a derivative of the visual
effect of the technical solution and cannot conceal its feature in
constituting the technical solutions. Consequently, the features
specified in the claim form a technical solution.
The present application utilizes the umbrella head's
structural feature as a technical feature. By exploiting the said
technical feature with technical means, it solves a technical
problem by displaying the small ornament flowing in the transparent
umbrella head. Furthermore, the naturally achieved effect is a
From this example, it can be determined that if technical means
consists of technical features, its solved problem is generally a
technical problem, and its achieved effect is generally a technical
effect in conformity with the law of nature. Essentially, contents
recited in most inventions in the art of machinery can generally
constitute a technical solution so long as the technical means
employed consists of technical features.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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