I. The principle of proof in the patent invalidation procedure The distribution of the burden of proof also follows the general principle of "whoever advocates the proof", and the parties have the responsibility to provide evidence to prove the facts on which their request for invalidation is based or to refute the facts on which the other party's request for invalidation is based.
If there is no evidence or the evidence is insufficient to prove the facts identified by the parties, the parties with the burden of proof shall bear the adverse consequences. As a lawyer with litigation experience, he has a good understanding of the burden of proof and the distribution of the burden of proof, and can predict the strength of evidence and the completeness of the evidence chain in time.
For example, the application of the principle of evidence superiority and the principle of probability of evidence proving facts are beyond the reach of other professionals. Although the application of these principles of evidence in the patent invalidation procedure is not clearly defined, they have been used in practice, and the examination guide also stipulates that we can refer to the provisions on evidence in civil litigation. Therefore, lawyers have certain advantages in organizing evidence or refuting the evidence of the other party in combination with invalid reasons. Of course, the premise is that lawyers must understand patents, the particularity of patent invalidation procedures, and the nature of patent invalidation, especially the knowledge of patent novelty, creativity and the openness of patent application documents. Therefore, lawyers with the qualification of patent agents should have greater achievements in the patent invalidation procedure.
Second, what evidence does the patent invalidation procedure need to submit? The patent invalidation procedure has special requirements for the submission of evidence. First, there are evidence requirements when accepting the request for invalidation. Second, there are requirements for the submission of evidence after the request for invalidation is accepted. Third, there are more than. 1. Evidence requirements for accepting the request for invalidation Where a patent is requested to be declared invalid or partially invalid in accordance with the provisions of the first paragraph of Article 64 of the Detailed Rules for the Implementation of the Patent Law, the relevant evidence shall be submitted at the same time as the request for invalidation is submitted to the Patent Reexamination Board, and the reasons for the request for invalidation shall be specified in combination with the submitted evidence, indicating the evidence on which each reason is based.
Chapter 3.3 of the fourth part of the Review Guide stipulates that "if the claimant fails to specify the reasons for invalidation, or submits evidence but fails to specify the reasons for invalidation in combination with all the submitted evidence, or fails to specify the evidence on which each reason is based, his request for invalidation will not be accepted." The above provisions show that the requirements for evidence when accepting the patent invalidation request are obviously different from those in the civil procedure law and the administrative procedure law.
Section 4. 1 in Chapter 3 of Part IV of the Review Guide clearly points out that the collegial panel usually only reviews the scope, reasons and evidence submitted by the claimant. It can be seen that in the procedure of invalidation, evidence is not only the formal requirement of whether the procedure can be started, but also the key to the success of the request for invalidation.
2. Time limit for submitting supplementary evidence after the request for invalidation is accepted. In the procedure of patent invalidation, the period of proof is of great significance. Once the time limit for adducing evidence exceeds the time limit and is not considered by the Patent Reexamination Board, it will often become a decisive factor affecting the success or failure of this invalidation procedure. 2. 1. Evidence of the applicant: Article 4.3. 1 in Chapter III of Part IV of the Examination Guide stipulates: (1). If the claimant supplements the evidence within one month from the date of filing the request for invalidation, it shall specify the relevant reasons for invalidation in combination with the evidence within this time limit, otherwise the Patent Reexamination Board will not consider it.
(2) If the claimant supplements evidence one month after the date of filing the request for invalidation, the Patent Reexamination Board will generally not consider it, except for the following circumstances: (1) The claimant supplements evidence within the time limit specified by the Patent Reexamination Board and specifically explains the relevant reasons for invalidation in combination with the evidence within the time limit; (2) Submit common-sense evidence in technical fields such as technical dictionaries, technical manuals, textbooks, etc., or notarial certificates, originals and other evidence used to improve the legal form of evidence before the end of the oral hearing debate, and explain the relevant invalid reasons in detail in combination with the evidence within this time limit. (three) the evidence submitted by the claimant is in a foreign language, and the time limit for submitting the Chinese translation is applicable to the time limit for presenting evidence.
2.2, the patentee's burden of proof Chapter III Part 4.3.2 of the Examination Guide stipulates: "The patentee shall submit the evidence within the time limit specified by the Patent Reexamination Board, but the common sense evidence or notarial certificate in technical fields such as technical dictionaries, technical manuals and textbooks and the originals used to improve the legal form of evidence can be supplemented before the end of the oral hearing debate. Where the patentee submits or supplements evidence, it shall specify the evidence submitted within the above-mentioned time limit.
The evidence submitted by the patentee is in a foreign language, and the time limit for submitting the Chinese translation of the evidence shall apply to the time limit for adducing evidence. If that evidence submit or supplemented by the patentee doe not meet the above-mentioned time limit or fails to specify the evidence submitted or supplemented within the above-mentioned time limit, the patent reexamination Board shall not consider it. "
From the above provisions in the Examination Guide, we find that the evidence requirements for patent invalidation are obviously different from those in civil or administrative litigation: the time limit for proof must be specified and the evidence submitted must be specified. According to the explanation on page 420-42 1 of Detailed Interpretation of the New Patent Law compiled by the Ministry of Justice of China National Intellectual Property Administration, on the one hand, the claimant should explain the purpose of each piece of evidence provided, that is, the purpose of the evidence. On the other hand, the claimant should at least have evidence to support every reason for declaring the patent invalid, such as lack of novelty. Claimants should not submit any evidence that is meaningless to their claims, nor should they make unfounded and invalid claims.
In other words, the claimant shall submit the evidence corresponding to the reasons for invalidation, and the patentee shall specify the reasons that meet the conditions for patent grant according to the evidence. Otherwise, the Patent Reexamination Board may not consider it.
In the proceedings, we only need to submit evidence within the time limit, without giving specific reasons. We can leave it to the trial to clarify the purpose of submitting evidence according to the requirements of the case. Obviously, the patent invalidation procedure is not so strict with the submission of evidence. 3. Submission of overdue evidence Article 66 of the Detailed Rules for the Implementation of the Patent Law.
2. The difference between existing technology and 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, 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!
3. Where should I give evidence in patent litigation?
"Whoever claims, who gives evidence" is one of the basic principles of China's civil procedure law, that is, the parties should provide evidence for their claims. In patent infringement civil litigation, the plaintiff has the responsibility to provide evidence to prove the facts on which his claim is based or the facts that the defendant refutes the plaintiff's claim.
However, there are exceptions to this principle. According to Article 61 of the Patent Law of People's Republic of China (PRC), a unit or individual that manufactures the same product should provide proof that its product manufacturing method is different from the patented method, that is, the burden of proof is reversed in an invention patent infringement lawsuit involving a new product manufacturing method, that is, the burden of proof using different methods is transferred to the defendant. If the defendant cannot provide evidence or the evidence is insufficient, he may have to bear corresponding legal responsibilities.
In the face of possible loss of evidence, the parties may apply to the court for evidence preservation measures, thus providing convenience for the evidence in the subsequent proceedings. Article 81 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that in the case that evidence may be lost or difficult to obtain later, the parties may apply to the people's court for evidence preservation during the proceedings, and the people's court may also take the initiative to take preservation measures.
4. Methods What are the rules of proof in patent infringement litigation?
In general, the plaintiff in civil litigation bears the burden of proof.
For some special infringement cases, the so-called "inversion of burden of proof" rule is adopted. Paragraph 2 of Article 57 of the Patent Law stipulates that if a patent infringement dispute involves an invention patent of a new product manufacturing method, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method.
Article 4, paragraph 1 (1) of the Rules of Evidence stipulates that in a patent infringement lawsuit caused by a new product manufacturing method invention patent, the unit or individual that manufactures the same product shall bear the burden of proof that its product manufacturing method is different from the patented method. The provisions of legal and judicial interpretation mainly take into account the particularity of the method patent itself and the difficulty of proof of the plaintiff in infringement litigation. On the basis of considering the balance between the interests of the patentee and the public, the legislator stipulates that the accused infringer who manufactures the same product bears the burden of proof that the manufacturing method of the product is different from the patented method.
In the method patent infringement litigation, the patentee or interested party will generally claim that the product manufactured by the patented method is a "new" product for the purpose of their own interests, so as to reduce the burden of proof and the risk of losing the case.