Case:
199811,the patent re-examination board granted the invention patentNo. 16558 on June 1994. In the process of hearing the request for invalidation, the evidence related to the prior use of the patent in this case is evidence 2: the sales invoice between Hong Kong Risheng Company and Xinhua Knife and Shear Fenghua Branch, including No.3300 electric knife; And evidence 3: several product photos, including 3300 electrotome; Evidence 4: The product produced by the plaintiff in the oral trial, namely, No.3300 electrotome.
Among them, the claimant believes that the following facts can be proved according to the evidence chain formed by the above evidences 2, 3 and 4: Fenghua Branch of New China Knife and Scissors purchased No.3300 electric knife from Hongkong on April 199 18, 2008, and the structure of the product is the same as that of this patent technology.
In this regard, the collegial panel held that the term "domestic" as mentioned in the second paragraph of Article 22 of the Patent Law refers to the effective scope of China's patent law, excluding Hong Kong. Therefore, on the premise that there is no evidence to prove that the No.3300 electrotome involved in Evidence 2 was imported into China before the application date of this patent, the fact that the above sales only involve Hongkong 199 1 year does not affect the novelty of this patent.
Case study:
According to Article 22 of the Patent Law, different disclosure methods have different geographical restrictions. For publishing, region refers to the whole world; The use of publicity and other forms of publicity are limited to domestic patent law. As the current laws in China have not extended to Hong Kong, Macao and Taiwan, the domestic scope of the patent law is limited to the people of China and Chinese mainland.
When judging novelty and creativity, different geographical restrictions are adopted according to different publicity methods, which is usually called mixed (or relative) novelty judgment criteria. The main reason for the use of "geographical restriction" in different publicity methods in China's patent law system is that the public obtains corresponding technical information through "using publicity" and "making it known to the public in other ways", and the difficulty and litigation cost of the parties in the follow-up procedure of the Patent Reexamination Board are far more difficult and high than that of "publicity".
As far as this case is concerned, the plaintiff claims that the patented products in this case are known to the public because of their use, but the evidence submitted by the plaintiff shows that the sales took place in China Special Administrative Region, that is, the evidence submitted by the plaintiff failed to prove that the sales or use of the corresponding products took place in China in the sense of patent law. Therefore, the plaintiff's claim that the patented product in this case lost its novelty due to use cannot be established.