Keywords: consistency of patent examination standards
Statutory law is naturally lagging behind, and patent law and its implementation rules are no exception. With the rapid development of modern society and the rapid development of science and technology, patent applications are complex and changeable, so it is impossible for the patent law and its implementation rules to comprehensively cover all kinds of specific patent applications. Patent examination standard refers to the collection of patent law and its detailed rules for implementation, the examination standard provisions in the Patent Examination Guide and other specific standards used to measure whether a patent application can be granted a patent right in the process of patent examination, that is, the patent law and its detailed rules for implementation, the relevant examination standard provisions in the Patent Examination Guide and the specific standards for understanding and interpreting these provisions.
I. Understanding of the consistency of patent examination standards
Patent law and its implementing rules and patent examination guidelines are used to adjust the relationship between the applicant and the public, but patent applications are complex and constantly changing, so it is obviously impossible to make the relatively fixed patent law and its implementing rules and patent examination guidelines clearly and exhaustively regulate all patent applications. In addition, people's cognitive ability has certain limitations, so it is impossible to predict all the situations when formulating the Patent Law and its implementing rules and patent examination guidelines, and it is impossible to specify all the relationships in detail, let alone make correct adjustments to all patent applications, so it is necessary to leave some room objectively. Finally, after the promulgation of the Patent Law, its implementing rules and patent examination guidelines, it may not be possible to guarantee that the examiner will make the same examination conclusion because the examiner still has some discretionary space. In addition, at the operational level, due to the huge differences in various examination fields involved in patent examination, examination departments in different examination fields also have certain difficulties in unifying examination standards, such as electrical field and chemical field. The above factors will inevitably lead to the inconsistency of patent examination standards. The main hazards of the inconsistency of patent examination standards are: 1, which may lead to the examiner's interpretation of the patent law and the patent examination result being far from the spirit and purpose of the patent law; 2. It may cause different examiners to make different conclusions about the same kind of facts, resulting in the phenomenon of "different trials in the same case".
Second, review the connotation of standard consistency
According to the practical process of patent examination, the consistency of examination standards can be roughly divided into the following three types: fact finding, reason discussion and evidence adoption tend to be consistent. The following is discussed from three aspects.
This fact is that the conclusion screened by the examiner from the application documents and/or comparison documents does not conform to the relevant provisions of the Patent Law and its detailed rules for implementation. This fact should be based on the evidence such as application documents and comparison documents and the common sense of technicians in the technical field, which mainly includes the fact determination related to application documents, such as the protection scope of claims and the fact determination related to comparison documents.
Reason discussion refers to the discussion process of the patent law and its detailed rules for implementation, the examination standards in the examination guide and other specific standards. It is given to measure whether a patent application can be granted a patent right on the basis of finding out the facts and drawing the examination conclusion. The consistency of the reasons mainly includes the consistency between the application of the law and the specific discussion process. For example, when the patent application does not conform to a certain provision of the patent law and the related discussions tend to be consistent, or there is legal overlap, different examiners keep consistent in choosing the applicable law.
The consistency of evidence mainly involves the consistency of examiners' retrieval level, experience cognition and professional level in their technical fields.
Three. Suggestions on achieving consistency of review standards
First of all, the establishment of a team of high-quality examiners is the prerequisite for achieving the consistency of examination standards. The correct exercise of patent examination depends on the examiner's legal literacy, professional quality, moral concept, sense of responsibility and mission. Try to avoid the inconsistency of examination standards caused by the conflict of examiners' working ability, cognitive ability and knowledge level; Enhance the inspector's awareness of public servants, enhance administrative ability, and constantly improve professional level.
Secondly, establish a standardized patent guidance case system. Patent guiding cases have the following functions in the process of patent examination: first, pertinence. The problems in the application of patent law are all aimed at specific patent applications, and the formulation of patent law is usually based on the universality of patent applications rather than solving patent cases. Comparatively speaking, patent guidance cases are all made for typical cases, so they are more targeted. Second, timeliness. Patent law is a summary of previous patent examination, so it is inevitably lagging behind and may be difficult to apply to some problems in new patent applications in future social life. Patent guidance cases are made directly for individual cases, which reflect the new situation and new problems in practice in time, so they can respond to new patent applications in reality in time. Third, it is more conducive to standardizing the examiner's discretion. After the publication of patent guidance cases, under the same or similar circumstances, the examiner must conduct the examination according to the patent guidance cases, further standardizing the examiner's discretion.
Four, how to establish a patent case guidance system
First of all, we should ensure that the patent guidance cases are carefully selected, and pass on the excellent examination experience to other Patent examiners for learning and reference, which will help to improve the predictability of patent examination and maintain the consistency of patent examination standards. The selection of patent guidance cases follows the following three principles: typicality, correctness and rigor. First of all, typicality is not only manifested in the typical characteristics of facts in patent applications, but also in the reasonable solution to the difficulties and novelty problems in the application of patent law. Secondly, the patent guidance case should be a case with correct patent examination conclusion, which includes two aspects: ascertaining facts and applying laws. Patent guidance cases are not always binding after they are published. After a period of time, they may not adapt to new legislation or social changes and need to issue new patent guidance cases to replace them. Finally, its release should be fully discussed and approved by China National Intellectual Property Administration. Adoption procedures should be strict and have a unified format, style and number. It should be published on authoritative media such as China National Intellectual Property Administration website.
Secondly, the key to the establishment of patent case guidance system is to clarify the effectiveness of patent case guidance. Patent guidance case is a reference similar to the examination standard in the process of patent examination. However, when establishing the patent case guidance system, it should be clear that patent case guidance does not depend on Patent examiners's free choice, but a standard that should be referred to. Specifically, first, the patent guidance cases are authoritative. The meaning of "should" includes mandatory requirements. In other words, all Patent examiners should refer to the patent guidance case for review when encountering similar cases. Second, "reference" means that in the absence of sufficient and justified reasons, Patent examiners should refer to patent guidance cases to make a review conclusion on similar cases.
Finally, the key to the application of patent guiding cases lies in the judgment of "the same case or similar case". Because the higher the similarity of patent applications, the more conducive to the application of patent guidance cases. The similarity of patent applications should have the following characteristics: First, the facts are similar. Consider whether the key facts in the pending patent application and the patent guidance case are similar. When considering, we should pay attention to comparing the differences between them, which will have a substantial impact on the application of patent law, which is the focus of controversy. Second, the legal issues in dispute in this case are similar. For example, whether it belongs to the object category stipulated in the second paragraph of Article 2 of the Patent Law. All patent applications with the above characteristics can be considered as similar to patent guidance cases. It can be seen that the judgment of similarity is the application of logical analogy method. Therefore, Patent examiners must be cautious about analogy, deeply analyze the similarities and differences between patent guidance cases and pending patent applications, and carefully choose the comparison method to make the analogy reasoning process reasonable and draw scientific conclusions.
About the author: Tang Yan, Examiner of Electrical Invention Examination Department of Beijing Center of China National Intellectual Property Administration Patent Examination Cooperation, Master; Liu Chang, Examiner of Communication Invention Examination Department of China National Intellectual Property Administration Patent Examination Cooperation Beijing Center, Master.