Conceptual elaboration
The commercial success of the invention is one of the other factors that should be considered when judging the creativity of the invention as stipulated in the Patent Examination Guide (20 10). The Patent Examination Guide further stipulates that commercial success should be directly caused by the technical characteristics of the invention. If commercial success is caused by other reasons, such as the improvement of sales technology or advertising, it cannot be used as a basis for judging creativity. China has such considerations when judging creativity, and the patent examination departments in the United States and the European Union have similar provisions.
In addition to novelty and practicality, the Patent Law promulgated by the United States 1952 establishes a "negative rule" in Article 103, that is, an invention that is obvious to the prior art should not be patented. 1966, the supreme court of the United States first established a concrete analytical framework for judging non-obviousness in Graham's case: first, determine the scope and content of existing technology; The second is to determine the difference between the existing technology and the related claims; The third is to limit the level of general technicians in related technical fields; Fourth, in this context, consider the auxiliary factors such as business success, long-standing but unresolved needs and the failure of others. On the basis of summing up precedents, the American Patent Examination Guide stipulates that if we want to support the claim that the invention is not obvious on the grounds of commercial success, we should prove that there is a connection between commercial success and the invention to be protected. In addition, the evidence of commercial success must be consistent with the scope of protection of the claims; Commercial success must come from the required invention; Commercial success must be the result of the functions and advantages recorded or inherent in the manual.
The Guide to Patent Examination of the European Patent Office stipulates the auxiliary factors to judge creativity, including the invention overcoming technical prejudice, the invention producing unexpected technical effects, the invention meeting the long-standing demand and the invention achieving commercial success. For commercial success, the Patent Examination Guide of the European Patent Office further stipulates that commercial success itself does not constitute a sign of creativity, but if the examiner is convinced that commercial success stems from the technical characteristics of the invention rather than other influencing factors (such as sales technology or advertising), and the invention meets the long-term demand, there is a correlation between commercial success and creativity.
According to China's Patent Examination Guide, in order to constitute a commercial success in the sense of patent law, the following two necessary conditions must be met: first, the invented product is successful in business; Second, this commercial success is directly caused by the technical characteristics of the invention. If the applicant/patentee wants to prove the creativity of the invention and creation by commercial success in the authorization stage and the invalidation stage, he must provide sufficient evidence on the above two conditions.
Commercial success is the result of comparing and selecting a specific product with other similar products in the free market. If a particular product is obviously more popular with buyers than other similar products, it can usually be considered as a commercial success. The direct evidence to prove the commercial success of products is the sales evidence of products, including market share, sales volume, sales scope, sales duration and so on. Market share is usually more powerful evidence. In addition, imitation of products, media reports, evaluation reports issued by authoritative organizations, statistical data and certification materials can also be used as evidence of commercial success. Whether the evidence submitted by the applicant/patentee is sufficient to prove the commercial success of a product requires the examiner to synthesize all the evidence in a case and judge according to the industry situation.
On the basis that commercial success has been fully demonstrated, it needs to be further proved that commercial success is directly caused by the technical characteristics of the invention. Its purpose is to eliminate the influence of non-technical factors such as sales technology and advertising on commercial success, and to confirm the direct causal relationship between the technical characteristics of the invention and commercial success. To explore the reasons for commercial success, it is necessary to compare the specific products that have achieved commercial success with other similar products on the market and determine the similarities and differences in technology. In the case of similar technology, if a specific product has achieved commercial success compared with other similar products, it can be basically determined that the commercial success of this specific product depends on factors other than technology. In the case of technical differences, comparing the technical similarities and differences between a particular product and other similar products, the similarities are usually not enough to make a particular product successful in business. For technical differences, it is necessary to further analyze whether these differences are necessary for the commercial success of specific products and whether these differences are sufficient for the commercial success of specific products. If the answers to the above two questions are affirmative, then it can be basically determined that this particular product has indeed achieved commercial success because of its technical characteristics. In order to prove that the commercial success is directly caused by the technical characteristics of the invention, it is necessary to further establish the relationship between the specific products that have achieved commercial success and the claimed invention, which requires that the technical elements that make the specific products achieve commercial success should be embodied in the claimed claims in the form of technical characteristics. If all the above conditions are met, it can usually be concluded that commercial success is directly caused by the technical characteristics of the invention.