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A technical solution has been patented, but is refuted. Thetechnical solution is important to the applicant. With regard towhether the technical solution canbepatented again or not?There have recently been differentcustomers who present such questions.

It should be noted that, the applicant can start areexaminationprogram for incompliancewith the rejection determination, and can also complain aboutincompliance with the reexamination determination of the patent ofthe invention in the case that the reexamination program maintainsthe rejection determination. If the applicant does not use, or doesnot intend to use, the described rescue means, or the final officeafter using the described rescue means decides to be the backbackedpatent application, it is advised whether to apply for patent nolonger for the technical solution?

If the technical solution is greatly improved, a new solution isformed, which does not belong to the prior art, and the patentapplication may be considered. If the technical solutionessentially does not change, only the description manner ischanged, and the earlier application affects the novelty of thelater application, and the patent application is not advised.

If the technical solution itself is not greatly improved,however, since the original application text of the earlierapplication does not highlight the point of the invention which theapplicant wants to emphasize this time, the applicant wishes toapply for a patent again, and whether to apply for a patent againis advised; and if it is advised to apply for a patent, it isnecessary to pay attention to what kind of patent?

In recent years, the writer has encountered such a case. Thetechnical solution provided by the applicant relates to the fieldof communications, and relates to a method forencrypting/decrypting data by means of a network device without anIP address and a MAC address. The prior application is proxied byother agency. The independent method claims of the priorapplication are as follows:

intercepting a target data packet transmitted by a data packetsending device to a data packet receiving device;

Performing preset processing on the target data packet, andgenerating a processed data packet of which the data amount is lessthan the MTU amount of a communication network;

Transmitting the processed data packet to the data packetreceiving apparatus.

The applicant is of the opinion that the earlier applicationdoes not highlight that the encryption/decryption operation isrealized by a network device without IP address and MAC addresses,and wishes to apply for a patent again with regard to the technicalsolution. In this case, the applicant has the followingthought:

(1)Re-applying a patent for thistechnical solution?

Firstly, it is necessary to compare the technical solution withthe full text of the initial application documents of the earlierapplications, The earlier application only discloses processing adata packet as a data packet less than an MTU amount via anintermediate device, but does not disclose that a communicationintermediate device is a device without IP address and MACaddresses, also does not disclose respectively encrypting anddecrypting same by two encryption/decryption devices between a datapacket sending device and a receiving device, That is, the featuresof the encryption/decryption device in the technical solution andthe application scenario of the technical solution are notdisclosed.

Secondly, the present technical solution needs to be comparedwith the prior art closest to the earlier application (D1 providedby the examiner), Reference document D1 discloses that nodes A andB can actively send a test message, and the length of an MTU isset, However, a network device without the IP address and the MACaddress does not have the capability of actively sending a datapacket, and cannot control the length of the sent data packet incommunication, Accordingly, the characteristics of the node in D1are completely different from those of the network device in thepresent application.

Further, it is also required to search for whether there is acloser prior art after the earlier application, and by means of thesearch, if no closer prior art is found, it can be preliminarilyjudged that the present technical solution is novel.

By means of evaluation, the present technical solution, by meansof a method for performing encryption/decryption on a networkdevice without an IP address and a MAC address, not only can ensurethat the length of a data packet after an encryption/decryptionoperation does not change with the length of an original datapacket, but also can ensure the synchronization and security ofparameter data required for data encryption/decryption; preliminaryjudgement involves an inventive step; therefore, the presenttechnical solution is advised to make a patent applicationagain.

(2)With regard to the technical solution application, attentionneeds to be paid to something?

First of all, an application scenario of performingencryption/decryption by using a network device without an IPaddress and a MAC address is the largest inventive point, a set ofsystem claims can be laid out, and the system independent claimslaid out are as follows:

A first network device, configured to send to a second networkdevice to-be-processed data;

A first encryption and decryption device connected to the firstnetwork device and used for receiving the data to be processed,encrypting the data to be processed to obtain encrypted data havingthe same length as the data to be processed, and transmitting theencrypted data to the second network device via a network, whereinthe first encryption and decryption device is a network devicewithout an IP address and a MAC address;

A second encryption and decryption device, connected to thesecond network device, and configured to receive the encrypted datathrough the network, decrypt the encrypted data to obtain decrypteddata, and transmit the decrypted data to the second network device,wherein the second encryption and decryption device is a networkdevice having no IP address and MAC address;

a second network device, configured to receive the decrypteddata.

Secondly, the encryption method and the decryption method inthis application scenario are also inventive points, andcorresponding method claims may be respectively arranged from bothsides of the encryption end and the decryption end.

Further, the layout of dependent claims is in communication withthe inventor, the encryption algorithm in the present technicalsolution is the same as the encryption algorithm in the earlierapplication, the instructor guides the inventor to improve andextend the encryption algorithm, proposes an encryption algorithmdifferent from the earlier application, and is deployed independent claims.

Finally, the patent application corresponding to the technicalsolution is granted a patent.

In conclusion, a patent application corresponding to onetechnical solution is refuted, but the technical solution has agreat value to the applicant, and a patent attorney can beconsulted about whether the technical solution can perform a patentapplication again. With regard to a patent agent, on the onehand,the technical solution can be compared with the prior art atfirst (including, but not limited to, the technical solutiondisclosed in the earlier application and the reference document ofthe earlier application), Insofar as the technical solution differsgreatly from the prior art, the applicant can be advised to make apatent application again. On the other hand, the inventor can beguided to mine and extend the technical solution,and re-determiningthe technical problem and the necessary technical features forsolving the technical problem, and reasonably performing patentlayout, The patent application for this technical solution also hasthe opportunity to obtain patent rights.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

See more here:
Whether The Technical Solutions Corresponding To The Refuted Patent Application Can Also Apply For Patent - Intellectual Property - China - Mondaq