How to understand "technicians in their technical fields"

0? "Technical personnel in the technical field", also known as technical personnel in this field, is a very important concept introduced in the patent law. Does not exist in real life, is a fictional person. In the patent law, "technical personnel in this field" is regarded as the subject of judging "creativity". In addition, this concept is also applied to the judgment of several other problems. For example, it is also used to judge whether the patent specification is "open and sufficient" and whether a patent is equivalent to infringement. Therefore, it is necessary to have a correct understanding of "ordinary technicians in this field". I. Meaning of "technical personnel in technical field" In the examination guide revised by China Patent Office 1993, "technical personnel in technical field" is defined as: "A technical personnel in technical field is different from an examiner, and he is a fictional person. He knows all the existing technologies in the technical field to which the invention belongs, and has the general knowledge and ability of ordinary technicians in this technical field. His knowledge changes with time. " In the above provisions, "technical personnel in the technical field" is defined as "people who know all the existing technologies in the technical field to which the invention belongs". In the popular words of examiners at that time, "ordinary technicians in this field" knew all the existing technologies before the filing date. At the end of 1990s, there was an invention patent application named "Four-stroke reciprocating piston internal combustion engine with series cylinders", which involved a new type of internal combustion engine-changing the traditional parallel cylinders into series cylinders. The description of the technical scheme in the manual is extremely simple, which only explains the advantages of using series cylinders in the internal combustion engine, but does not explain the difference between the rest of the internal combustion engine and the traditional parallel cylinder internal combustion engine. The attached drawing is only a very simple schematic diagram. In the process of substantive examination of the patent application, the substantive examiner rejected the application on the grounds of "lack of publicity", thinking that the new cylinder arrangement of cylinder series will inevitably bring some structural changes to other parts of this internal combustion engine, such as the steam distribution design of the engine, and the applicant should explain these specific technical contents in the specification. After receiving the rejection decision, the applicant shall file a request for reexamination with the Patent Reexamination Board. After examination, the Patent Reexamination Board upheld the original rejection decision. The applicant refuses to accept the reexamination decision made by the Patent Reexamination Board and brings an administrative lawsuit to the people's court. During the trial in the people's court, the applicant provided a newly retrieved patent document, which proved that technicians could solve the design problem of the steam distribution system of the machine by using the existing technology, so there was no problem of insufficient disclosure of the manual. After trial, the court of first instance held that because the contents of "insufficient publicity" identified by the Patent Reexamination Board had been recorded in the existing technology before its application date, ordinary technicians in this field could completely use this technology to realize the invention, and there was no problem of "insufficient publicity". Accordingly, the people's court revoked the rejection decision of the Patent Reexamination Board. The crux of the problem lies in the fact that what the applicant later submitted to the people's court was the patent document published before the filing date. Does the content recorded in this document belong to what ordinary people in the field should know? Or can the patent documents published before the application date be used as the basis for "full disclosure"? The subject to judge whether the instructions are fully disclosed should be "technical personnel in their technical fields". According to the definition of "technician" in the above review guide, technicians in their technical fields should "know" all the existing technologies before the application date. In this case, although the applicant did not explicitly write the relevant steam distribution problem in the specification, the solution to the steam distribution problem has been made public in the prior art, which should belong to the content that "technicians in the technical field" should know. Now that we know, we don't have to make it public. Therefore, there is no problem of "insufficient disclosure" in the present invention. This may be the basic basis for the people's court to make a judgment. If the above results are recognized, then any patent application only needs to write those technical contents that are not recorded in the existing technology in its specification, or when describing an invention, all the contents contained in the existing technology disclosed before the application date can be omitted from the patent specification, and it is conceivable how ridiculous the consequences will be. Article 26 of the Patent Law clearly stipulates: "The specification shall give a clear and complete description of the invention or utility model, which shall be subject to the realization of the technical personnel in the technical field." In this regard, the review guide is interpreted as: "The technical personnel in the technical field can realize it, which means that the technical personnel in the technical field can realize the technical scheme of the invention or utility model, solve its technical problems and produce the expected technical effect according to the contents recorded in the manual. The specification shall clearly record the technical scheme of the invention or utility model, describe the specific implementation mode of the invention or utility model in detail, and completely disclose the technical content necessary for understanding and realizing the invention or utility model, so as to reach the degree that technicians in their technical fields can realize the invention or utility model. " Obviously, it is wrong to interpret "technical personnel in the technical field" as "people who know all the existing technologies in the technical field to which the invention belongs" and take it as the subject of the judgment instruction "full disclosure". In the Review Guide revised by China National Intellectual Property Administration 200 1, the definition and explanation of "technicians in their respective technical fields" have been redefined and extended to this day: "technicians in their respective technical fields, also known as technicians in their respective fields, refer to a hypothetical person, assuming that he knows all the general technical knowledge of the technical field to which the invention belongs before the filing date or priority date, and can know all the existing technologies in this field, and If the technical problems to be solved can prompt the technicians in this field to find technical means in other technical fields, then he should also have the ability to learn relevant existing technologies, general technical knowledge and conventional experimental means from other technical fields before the application date or priority date. " According to this interpretation, "technical personnel in the technical field" are no longer people who know the existing technology well before the filing date. What it knows is limited to all the general technical knowledge in its technical field. As for other knowledge in the existing technology, including the contents recorded in patent documents, it only has the ability to "know". In the patent specification, if the technical scheme involves some technical contents in the existing technology, the applicant shall write the relevant technical contents into the specification. Even if it is not detailed, at least the source of the technology should be stated so that "technical personnel in the technical field" can "know" the technical content. The above-mentioned amendments to the Review Guide have fewer words and are not easy to attract people's attention. However, if we don't correct our understanding of this important concept, it will inevitably affect our judgment on some important issues. Two, "technical personnel in the technical field" in the creative judgment of the invention, refers to the invention has outstanding substantive characteristics and significant progress compared with the existing technology. The invention has outstanding substantive characteristics, which means that the invention is not obvious to the technicians in the technical field. If on the basis of the existing technology, the invention can be obtained only through logical analysis, reasoning or limited experiments, then the invention is obvious and does not have outstanding substantive characteristics. The invention has made remarkable progress, which means that compared with the prior art, the invention can produce beneficial technical effects. For example, the invention overcomes the shortcomings and deficiencies existing in the prior art, or provides a technical scheme with different ideas for solving technical problems, or represents a new technical development trend. Third, the application of "technical personnel in their technical fields" in other laws and regulations. Although the technical personnel in this field, that is, the technical personnel in the technical field, introduced a concept when evaluating the creativity of the invention patent, in fact, this concept will also be used in the process of evaluating whether the claim conforms to the provisions of the third or fourth paragraph of Article 26 of the Patent Law, the second paragraph of Article 22 of the Patent Law and the first paragraph of Article 20 of the Detailed Rules for the Implementation of the Patent Law. It is bound to be biased to understand the content of patent protection only from the perspective of language and words. The following only explains the application of the concept of technicians in this field from several important aspects. (1) Application in novelty judgment According to the provisions of Chapter 3 of Part II of the Examination Guide, novelty means that before the filing date, no identical invention or utility model was published in domestic and foreign publications, publicly used in China or known to the public in other ways, and no identical invention or utility model was applied to the Patent Office by others and recorded in the patent application documents published after the filing date (including the filing date). At first glance, the judgment of novelty is very simple, as long as we grasp an "identity", but the "identity" here is different from the "identity" in the ordinary sense. In addition to the same content, the examination guide also lists a variety of situations that can destroy the novelty of the claim. For example, 1) can be grounded directly from the comparison file, and there is no doubt that the determined technical scheme is not novel; 2) The concrete concept destroys the novelty of the superordinate concept; 3) The only difference from the comparison document is that the technical scheme directly replaced by conventional means in this technical field is not novel. These three situations also belong to the "same" situation mentioned in the above standards. However, these three situations need to be judged by technicians in the field with their general ability, and no one can directly judge them by language and text description. Of course, this kind of judgment is easier than creative judgment, so the ability of technicians in this field is lower. (2) Application in judging whether the specification is fully open and fair. Paragraph 3 of Article 26 of the Patent Law stipulates that the description shall give a clear and complete description of the invention or utility model, subject to the realization of the technical personnel in the technical field. As can be seen from the above provisions, whether the specification is clear and complete enough to realize the invention is judged by the ability of the technicians in the field. Therefore, when describing the technical features, the description can be omitted or omitted for the parts that are known in the field, but the parts that have contributed to the prior art, that is, the parts that are unknown to the technicians in the field, should be recorded in detail as much as possible. How clear and complete is it? It can be said that different fields have different requirements, but it can also be said that it depends on the ability of technicians in their technical fields. For example, for an invention to protect the mechanical structure, the technicians in this field can basically reproduce the invention by disclosing its constituent elements and their positional relationship in the specification, but for a pharmaceutical compound, if only its molecular formula is disclosed, the technicians in this field can't prepare it at all without creative labor, and they can't know its use and the technical effect that can be achieved after use. (3) In the process of judging whether the claim is supported by the specification, the second chapter of the second part of the Examination Guide explains the fourth paragraph of Article 26 of the Patent Law, pointing out that the claim should be based on the specification, that is, the claim should be supported by the specification; The technical scheme protected by each claim in the claims shall be the technical scheme that the technicians in this field can obtain or summarize from the fully disclosed contents in the specification, and shall not exceed the scope disclosed in the specification. In the above description, the technical personnel in the technical field are obviously mentioned, that is, the technical personnel in this field are mentioned. This shows that it is clearly stipulated in the review guide that judging whether the claim is supported by the specification should be carried out from the perspective of a technical person in this field, and in this judgment process, the technical person in this field should not only have certain judgment ability, but also have the ability to summarize according to the general technical knowledge in this field. For example, the invention that claims to protect mascara composition defines that the adhesive is selected from oil-soluble or oil-dispersible polymers or * * * polymers, and the description only provides examples of several specific polymers. If the invention aims to replace the water-soluble adhesive in the prior art with an oil-soluble adhesive, the claim can be supported by the specification. Because those skilled in the art have the ability to choose an oil-soluble adhesive relative to a water-soluble adhesive, if the present invention focuses on the synergistic effect of a specific kind of oil-soluble adhesive and other components in the composition, such a claim may not be supported by the specification, because those skilled in the art usually cannot foresee the synergistic effect of various combinations of substances. In addition to the above situation, in the process of singularity judgment and clear judgment, it is also necessary to use the opinions of those skilled in the field. In a word, it is meaningless to evaluate technical problems without the opinions of technicians in this field. Four. Differences in creative judgment ability between inventions and utility model patents by technicians in this field. Chapter VI of the Review Guide first points out that the evaluation of utility model creativity refers to the evaluation of invention creativity in Chapter IV of Part II, and then points out that the standard of utility model patent creativity is lower than that of invention patent creativity. The difference between them in the criterion of creativity is mainly reflected in whether there is "technical enlightenment" in the existing technology. On the question of how to determine whether there is technical enlightenment and what is the difference between the judgment standard of invention patent and utility model, the Examination Guide gives two concrete manifestations, one is the field of existing technology, and the other is the quantity of existing technology. Generally speaking, the closest existing technical field selected in the creative evaluation of utility model should be the same as the technical field to which the utility model belongs or have a degree closer to the invention, and the number of comparison documents used should be less. The author thinks that, from another perspective, the above differences are actually reflected in the different abilities of the "technicians in this field" who evaluate the creativity of the two patents, that is, the "technicians in this field" who make invention patents should have higher abilities than the "technicians in this field" who make utility model patents. Therefore, it is easier for them to acquire technical knowledge from fields with low relevance, and they are more capable of combining various existing technologies.