美國專利改革法案後的103條款

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美國專利改革法案後的103條款

35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.
(a) A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the claimed invention subject matter sought to be patented and the prior art are such that the claimed invention subject matter as a whole would have been obvious before the effective filing date of the claimed invention at the time the invention was made to a person having ordinary skill in the art to which the claimed invention said subject matter pertains. Patentability shall not be negatived negated by the manner in which the invention was made.

(b)
(1) Notwithstanding subsection (a), and upon timely election by the applicant for patent to proceed under this subsection, a biotechnological process using or resulting in a composition of matter that is novel under section 102 and nonobvious under subsection (a) of this section shall be considered nonobvious if-
(A) claims to the process and the composition of matter are contained in either the same application for patent or in separate applications having the same effective filing date; and
(B) the composition of matter, and the process at the time it was invented, were owned by the same person or subject to an obligation of assignment to the same person.
(2) A patent issued on a process under paragraph (1)-
(A) shall also contain the claims to the composition of matter used in or made by that process, or
(B) shall, if such composition of matter is claimed in another patent, be set to expire on the same date as such other patent, notwithstanding section 154.
(3) For purposes of paragraph (1), the term "biotechnological process" means-
(A) a process of genetically altering or otherwise inducing a single- or multi-celled organism to-
(i) express an exogenous nucleotide sequence,
(ii) inhibit, eliminate, augment, or alter expression of an endogenous nucleotide sequence, or
(iii) express a specific physiological characteristic not naturally associated with said organism;
(B) cell fusion procedures yielding a cell line that expresses a specific protein, such as a monoclonal antibody; and
(C) a method of using a product produced by a process defined by subparagraph (A) or (B), or a combination of subparagraphs (A) and (B).
(c)
(1) Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the claimed invention was made, owned by the same person or subject to an obligation of assignment to the same person.
(2) For purposes of this subsection, subject matter developed by another person and a claimed invention shall be deemed to have been owned by the same person or subject to an obligation of assignment to the same person if -
(A) the claimed invention was made by or on behalf of parties to a joint research agreement that was in effect on or before the date the claimed invention was made;
(B) the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; and
(C) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.
(3) For purposes of paragraph (2), the term "joint research agreement" means a written contract, grant, or cooperative agreement entered into by two or more persons or entities for the performance of experimental, developmental, or research work in the field of the claimed invention.


根據103的修訂，103變得十分簡潔，從追蹤修訂的標示可以看出，改成發明人先申請主義確實簡化了103的判斷。
首先，將subject matter改為claimed invention，這應該是與invention的決定在於申請日的改變相關；接著是強調了"有效申請日"，即簡單判斷與102所界定的前案比對之下，即便有差異，但是差異在"有效申請日"之前為顯而易知（obvious），則不予專利；其中判斷的基準日變成"有效申請日"，而刪除了原條文寫的"at the time the invention was made"。

Ron
資料來源：http://www.bitlaw.com/