With regard to the determination of common sense, most experts believe that common sense is a "well-known fact" as stipulated in Item 1 of Article 68 of the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation, and the court can directly determine it without the need for the parties to provide evidence. However, when we regard common sense as a well-known fact, we should pay attention to the following points:
First, the so-called well-known facts must be known by the general members of a certain field in a specific time and space, but not necessarily by everyone in society, that is, the general technical knowledge known by ordinary technicians in this field before the patent application date.
Second, well-known facts belong to the content of judicial cognition in evidence law. The court may, on its own initiative or at the request of the parties, make judicial cognizance of the well-known facts involved in the case at any procedure or stage of litigation, and is not limited by the time limit for adducing evidence.
Third, if one party disagrees with the common sense advocated by the other party or recognized by the Patent Reexamination Board, the other party or the Patent Reexamination Board has the responsibility to provide relevant information and make a full explanation. The parties may object to the judicial notice adopted by the court, and the court shall inform the parties of the reasons and process of judicial notice.
Fourth, if there is enough evidence to the contrary to overturn the facts recognized by judicial notice, the parties who advocate the facts still need to provide evidence.
Fifth, the court found that well-known facts are not restricted by the exclusion rules of evidence outside the judicial review case file, and well-known facts that have not been recorded by administrative organs in administrative procedures can still be identified in litigation.
For the proof of common sense, some experts believe that common sense should be judged according to the knowledge of ordinary technicians in this field, and it is impossible to require proof of all common sense. There is no need to prove common sense of life. Only when the parties prove that the determination of the Patent Reexamination Board is wrong, the Patent Reexamination Board will bear the burden of proof for technical common sense. Some experts believe that common sense is not all well-known facts, and common sense belonging to well-known facts does not need to be proved. Only when the scope of administrative cognition and judicial cognition is different, the Patent Reexamination Board should be responsible for providing evidence.
Some experts believe that the determination of common sense involves whether a new reason for invalid examination has been introduced, which has been involved in the invalid examination procedure, and it should not be allowed to introduce common sense again in the litigation stage. If it is the request of the invalid claimant, it must be put forward in the invalid review stage, and the corresponding evidence must be provided and tried. It is introduced by the Patent Re-examination Board ex officio, and if the party concerned does not raise any objection at the time of prosecution, it shall be deemed as its approval; If an objection is raised in the process of prosecution, the Patent Reexamination Board shall still provide evidence, which does not belong to the submission of new evidence. The parties may also adduce new evidence to refute the determination of the Patent Reexamination Board and provide evidence, but the relevant evidence shall be presented before the end of the first instance at the latest.
Existing technology (the patent law of 200 1 year implemented before 2009-1 0 is called "existing technology") must have three characteristics:1,publicity, including publication publicity, use publicity and other means publicity; 2. Timeliness: the publication time must be before the application date of the application under review (priority date if there is priority); 3. Practicality: "Manufacturable or usable" and can produce "positive effects".
The public time is before the filing date of the examined application, and there is no practical known scheme, which does not belong to the existing technology, such as the sci-fi, mythical and public scheme of the Goddess Chang'e flying to the moon. Because taking fairy medicine can't make people run from the earth to the moon, it is a well-known scheme and has no practicability. The Goddess Chang'e flying to the moon is not prior art.. Therefore, it can't be said that Chang 'e in China landed on the moon in ancient times, so it can be seen that the first person in the world landed on the moon was not American neil armstrong, but Chang 'e in China!
2. What are the ways to prove common sense in the process of patent substantive examination?
I. What is substantive examination? Substantive review, also known as complete review system, was founded in the United States on 1836.
With the continuous progress of science and technology, the number of inventions is increasing day by day, and the registration system often makes applications with no scientific and technological value get patents, which has aroused the dissatisfaction of many patent users. Therefore, public opinion requires substantive examination of the content of the invention, that is, besides formal examination, it also needs substantive examination of novelty, creativity and practicality before deciding whether to grant a patent. Two, the scope of common sense and the scope of common sense, experts have different opinions.
Some experts believe that with reference to the relevant provisions of the Patent Examination Guide, common sense generally refers to the technical means to solve specific technical problems disclosed in well-known textbooks or reference books and the usual means to solve specific technical problems in this field. Technical dictionaries, technical manuals and textbooks can all be used as evidence to prove common sense.
However, some experts have put forward different views that the definition of common sense in the Patent Examination Guide is too broad, and many technical dictionaries, technical manuals and teaching materials are very professional and not really "common sense". With regard to the determination of common sense, most experts believe that common sense is a "well-known fact" as stipulated in Item 1 of Article 68 of the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation, and the court can directly determine it without the need for the parties to provide evidence.
However, we should pay attention to the following points when recognizing common sense as a public official: first, the so-called known facts must be known by ordinary members in a certain field in a specific time and space, not necessarily by everyone in society, that is, the general technical knowledge known by ordinary technicians in this field before the patent application date. Second, well-known facts belong to the content of judicial cognition in evidence law.
The court may, on its own initiative or at the request of the parties, make judicial cognizance of the well-known facts involved in the case at any procedure or stage of litigation, and is not limited by the time limit for adducing evidence. Third, if one party disagrees with the common sense advocated by the other party or recognized by the Patent Reexamination Board, the other party or the Patent Reexamination Board has the responsibility to provide relevant information and make a full explanation.
The parties may object to the judicial notice adopted by the court, and the court shall inform the parties of the reasons and process of judicial notice. Fourth, if there is enough evidence to the contrary to overturn the facts recognized by judicial notice, the parties who advocate the facts still need to provide evidence.
Fifth, the court found that well-known facts are not restricted by the exclusion rules of evidence outside the judicial review case file, and well-known facts that have not been recorded by administrative organs in administrative procedures can still be identified in litigation. For the proof of common sense, some experts believe that common sense should be judged according to the knowledge of ordinary technicians in this field, and it is impossible to require proof of all common sense.
There is no need to prove common sense of life. Only when the parties prove that the determination of the Patent Reexamination Board is wrong, the Patent Reexamination Board will bear the burden of proof for technical common sense. Some experts believe that common sense is not all well-known facts, and common sense belonging to well-known facts does not need to be proved. Only when the scope of administrative cognition and judicial cognition is different, the Patent Reexamination Board should be responsible for providing evidence.
Some experts believe that the determination of common sense involves whether a new reason for invalid examination has been introduced, which has been involved in the invalid examination procedure, and it should not be allowed to introduce common sense again in the litigation stage. If it is the request of the invalid claimant, it must be put forward in the invalid review stage, and the corresponding evidence must be provided and tried.
It is introduced by the Patent Re-examination Board ex officio, and if the party concerned does not raise any objection at the time of prosecution, it shall be deemed as its approval; If an objection is raised in the process of prosecution, the Patent Reexamination Board shall still provide evidence, which does not belong to the submission of new evidence. The parties may also adduce new evidence to refute the determination of the Patent Reexamination Board and provide evidence, but the relevant evidence shall be presented before the end of the first instance at the latest. Third, the way to prove common sense in the process of patent substantive examination "Patent Examination Guide" Part II "Substantive Examination" Chapter IV "Creativity" 3.
2。 1。
Section 1 gives that "salient features are common knowledge, such as common means to solve technical problems redefined in this field, or technical means to solve redefined technical problems disclosed in textbooks or reference books". In Chapter 2 and 4 of Part IV "Examination and Examination of Invalid Requests" of the Patent Examination Guide.
In section 1, it is mentioned that "in the review of the collegiate bench, the collegiate bench can introduce its common sense in the technical field, or supplement the relevant technical dictionaries, technical manuals, textbooks and other common sense evidence in its technical field". In the fourth part of the Patent Examination Guide, "Examination and Examination of Invalid Requests", chapters 8 and 4.
3。 3 "Common Sense" mentions that "the party who advocates a certain technical means as common sense in this field shall bear the burden of proof for its claim.
If one party fails to prove or fully explain that the technical means is common knowledge in this field, and the other party refuses to admit it, the collegial panel will not support the claim that the technical means is common knowledge in this field. The parties can prove that a certain technical means is common knowledge in this field through the technical contents recorded in textbooks, technical dictionaries, technical manuals and other reference books. "
It can be seen that there is no clear definition of common sense in the relevant laws and regulations, review guidelines or judicial interpretations in China, and there is no clear explanation of which sources can confirm common sense, so that common sense is often abused in the review process, and there will be disputes between applicants and examiners on whether a certain feature is "common sense". .