How to use the public contents of patent documents as evidence that patent rights are invalid

In the procedure of patent invalidation, if the novelty or creativity of the requested invalid patent is to be denied, the claimant of invalidation needs to provide evidence. Patent literature is a public publication and the only evidence that can be used to refute the application. Because of its standardization and the comprehensiveness and accuracy of the recorded technical content, it is often used as evidence to deny the novelty and creativity of the requested invalid patent in the patent invalidation procedure. When using the technical contents disclosed by the background technology department of patent documents as evidence in the invalidation procedure, there are usually many difficult problems to solve. Sometimes, in the review of invalidation cases, there is a problem that the requester uses the technical content (without citing information) disclosed by the background technical department of the requested invalid patent to evaluate the novelty or creativity of the requested invalid patent. The following will be combined with a case to illustrate whether the technical content (excluding citation information) disclosed by the background technical department of the requested invalid patent can be used to evaluate the novelty or creativity of the requested invalid patent. In one case, the person requesting invalidation can deny the novelty of the claim 1 of the requested invalid patent based on the technical content (no citation information) recorded in the background technology part of the requested invalid patent. The petitioner believes that according to the third paragraph of Article 18 of the Detailed Rules for the Implementation of the Patent Law, the technical content recorded in the background technology part of the patent document was known before the filing date, so the technical content recorded in this part can be used to evaluate the novelty and creativity of this patent claim. Secondly, because the scope of the claim 1 of the requested invalid patent is too wide and belongs to the technical content disclosed in the background section, the technical scheme of the claim 1 of the requested invalid patent is not novel compared with the technical content disclosed in the background section. In view of the above cases, the Patent Reexamination Board is of the view that, in the absence of citation information, the contents recorded in the background part of the specification cannot be regarded as the prior art that has been published before the filing date (priority date if there is priority). In the absence of other evidence to prove that the technical content disclosed in the background part can be used as the existing technology of the requested invalid patent, it is not enough to conclude that the technical scheme required by the claim has been disclosed by the existing technology, so it is not novel or creative. The contents recorded in the background technology part of the patent document specification cannot be regarded as the prior art disclosed before the application date or priority date without citing information. If the specific source is not given, and it is only described as the inventor's prior invention or the inventor subjectively considers it as the prior art, if the requested person agrees that it is the prior art of the requested invalid patent, or has retrieved the comparison file that discloses the content, it can be regarded as the prior art of this application. Problems that should be paid attention to when evaluating the novelty or creativity of the requested invalid patent with the technical content recorded in the technical background of patent documents as evidence: the technical content recorded in the technical background of patent documents has its particularity, which is as follows: 1, and the technical content recorded in the technical background of patent documents is usually different from the technical scheme required by patent documents, which is the background and basis of the technical scheme required by patent documents; 2. Although the Patent Examination Guide gives strict regulations on the technical content recorded in the background technology part of patent documents, in reality this part is often not standardized and objective. It is precisely because of the above particularity that the following points should be paid attention to when evaluating the novelty or creativity of the requested invalid patent with the technical content recorded in the background technology part of the patent document as evidence: 1 In the absence of quoted information, the disclosure date of the patent document as evidence should generally be regarded as the disclosure time of the technical content recorded in the background technology part of the patent document. In the absence of other circumstantial evidence and the applicant's self-admission, it should not be presumed that the disclosure time of the technical content is in the patent document. 2, in the absence of reference information, if the respondent believes that the technical content recorded in the background technology part of the patent document as evidence has been made public before the filing date of the requested invalid patent, the evidence can be used to evaluate the novelty or creativity of the requested invalid patent; 3. In the absence of quoted information, if the disclosure date of the patent document as evidence is later than the filing date of the requested invalid patent, the respondent has any objection to the disclosure date of the technical content recorded in the background technical part of the patent document, and the obligee cannot provide other circumstantial evidence to prove that the technical content recorded in the background technical part of the patent document as evidence has been disclosed before the filing date of the requested invalid patent, then the evidence cannot be used to evaluate the novelty or creativity of the requested invalid patent; 4. In the absence of quoted information, if the rebuttal provided by the respondent is sufficient to prove that the technical content recorded as evidence in the background technology part of the patent document was made public after the filing date of the requested invalid patent, the evidence cannot be used to evaluate the novelty or creativity of the requested invalid patent. If the circumstantial evidence provided by the claimant is sufficient to prove that the technical content recorded in the background technology part of the patent document as evidence has been made public before the filing date of the requested invalid patent, the evidence can be used to evaluate the novelty or creativity of the requested invalid patent.