Conditions for granting of legal protection

An invention in any technical field shall be granted legal protection, if it is new, has inventive level, and is industrially applicable.

Novelty of an invention

An invention is new, if it is not a part of the technical level. The technical level includes any data that has become open to public in the world before the date of an invention priority. Three main conclusions will follow from this formulation:

First, data must be open to public, that is, any interested person may get acquainted therewith. Official, closed, secret information will not be taken into account at investigation of the novelty of an invention.

Second, the novelty of an invention must have the absolute world character, i.e., not be limited by any territorial borders.

Third, data must be open to public before the date of an invention priority.

It should be noted separately that for the purposes of examination of the application for an invention and only for checking the novelty of an invention, the technical level shall include additionally, on condition of the earlier priority, all unrecalled applications for inventions and utility models filed in the Republic of Belarus by other persons, as well as patented in the Republic of Belarus, including by the same persons, inventions and utility models registered in the Register of Inventions and the State Register of Utility Models of the Republic of Belarus. The data contained in such sources shall not be covered by the requirement for general availability as of the date of priority of the invention under examination.

Inventive level

An invention will have the inventive level, if, for a specialist, it does not follow expressly from the technical level. Thus, for an invention to have the inventive level, it is necessary that the solution of a technical problem, the invention is aimed at, had such distinctive features that would have been unknown as of the date of priority of the invention, or, if such solutions have nonetheless been detected, then the fact of influence of the distinctive features onto the technical result specified at filing the application for the invention has not been confirmed.

The inventive level (“inventive step”, “ inventive activity”, “non-obviousness of an invention”) is the most complicated criterion for assessment of patentability of an invention, as being the most subjective of all the criteria. The concept “obviousness” is subjective by itself and, in addition, must be considered jointly with the term “specialist”. A specialist is a hypothetical figure. The choice of the specialist’s level of knowledge depends greatly on that technical field the invention relates to. A specialist in one case, depending on a technical field, may have the level of the practitioner, with medium qualification, possessing publicly available data in the technical field and, in the other case, the level of a scientist or a highly professional engineer.

In practice, an approach has been worked out to certain technical solutions that are not recognized as being compliant with the criterion of the inventive level of an invention and that are based, in particular, on:

• supplementing the known item with some known part (parts) to be connected to it according to the known rules, in order to achieve the technical result, in relation to which the influence of exactly such supplements has been established, except for cases when, beside the known technical result, another result unknown out of the technical level is achieved as well;
• replacing any part (parts) of the known item by any other known part, in order to achieve the technical result, in relation to which the influence of exactly such replacement has been established;
• excluding any part of the item with simultaneous exclusion of the function conditioned by its presence and achievement, in so doing, of the result common for such exclusion (simplification, loss in mass, dimensions, material intensity, reliability growth, reduction in process duration, and others); however if, at excluding any element (elements), its function is not excluded but passes to another element (elements) of the object and the object itself functions with the same or better indicators and in the same sphere as before excluding such element (elements) from it, such invention will be recognized as compliant with the requirement of the inventive level, if it does not follow from the known data on the remaining elements of the object that any of them is capable of displaying the function of the excluded element;
• increasing the number of homogeneous elements, actions for enhancing the technical result conditioned by presence of exactly such elements, actions in the item;
• making the known item or its part (parts) out of the known material, in order to achieve the technical result conditioned by the known features of such material;
• creating an item, consisting of the known parts, the choice of which and connection between which have been made on the basis of the known rules, recommendations, and the technical result achieved in so doing is conditioned only by the known features of parts of such item and connections between them;
• application of the known device, mode, substance, strain for a new purpose, if the new purpose is conditioned only by its known features, structure, implementation, and it is known that exactly such features, structure, implementation are necessary for achievement of such purpose;
• changing quantitative indicator (indicators), exhibiting such indicators as interrelated or changing the type of interrelation, if the fact of influence of each of them onto the technical result is known, and new values of such indicators or their interrelation could be received, proceeding from the known dependences, regularities.

An invention will be industrially applicable, if it may be used in industry, agriculture, healthcare, and other spheres.