At present, the "disclosure system" of patent specifications has become an important legal system in the patent system in countries that implement the patent system in the world. "Disclosure of technology itself in exchange for legal protection" has become a generally accepted and followed principle in the practice of patent system. It can be said that the open system is the cornerstone of the modern patent system. Then, to what extent can the relevant technical documents be made public to meet the needs of the law? Most countries have made relevant regulations on this, mainly requiring that the disclosure of patent specifications should be "sufficient" and "realizable". For example, the provisions of Article 1 12 of the United States Patent Law.
China's requirement for full disclosure of patent specifications is reflected in the third paragraph of Article 26 of the Patent Law of China [2]. That is, "the specification should make a clear and complete explanation, which shall be subject to the realization of technicians in the technical field." Section 2. 1 in chapter 2 of the current review guide explains this legal provision in detail [3].
On the whole, the "full disclosure" of patent disclosure is divided into two specific requirements, including "clarity" and "completeness". Among them, clarity means that the description should be clear in theme and accurate in words; Integrity means that the specification must not lack any technical content needed to understand and reproduce the invention or utility model. As far as a specific specification is concerned, whether it is "clear and complete" or not, the answer may come to different conclusions because of different subjects.
In order to make the specified requirements have a unified standard, the law stipulates that "technical personnel in the technical field can realize it", that is to say, the subject of such "legal hypothesis" can reproduce the technical scheme of the invention or utility model without creative labor after reading the contents of the manual [4].
"Full disclosure" involves many legal issues. The following is a related patent invalidation case, which only briefly discusses some problems in the "full disclosure" clause in the manual.
On September 7, 2004, the plaintiff filed a request with the Patent Reexamination Board to declare the China utility model patent with the patent number of 992 15524. X and the name "multifunctional dog collar" are invalid (hereinafter referred to as the patent involved). The reason for the claimant's invalidation is the third paragraph of Article 26 of the Patent Law. The filing date of the patent involved is1June 22, 999. The purpose of the invention is to provide a multifunctional dog pen which can adjust the length of the dog chain at will and is convenient to use.
The full text of the specification example of this patent is as follows:
As shown in the figure, the multifunctional kennel comprises a wire wheel housing 9, a wire wheel 10, a dog chain 12, a push block 6, a connector 4, an electric ball 2 and a battery, wherein the wire wheel is movably fixed in the wire wheel housing with a handle hole 8, and the dog chain is connected and wound in the wire wheel; the movable end of the wire wheel housing can be connected with a dog collar through fasteners, and the wire wheel housing is connected with the wire wheel. The device is characterized in that a plurality of positioning claws 1 1 are formed on the circumferences of the two sides of the drum, a rotatable connector is fixed on the corresponding position of the drum shell in a pin mode, clamping feet 3 for clamping the positioning claws of the drum are formed on both sides of the connector, a push rod on the reel shell is connected between clamping feet of the connector through an open shaft sleeve, a spring 5 is pushed between the push rod and the wall of the reel shell on which the push rod is installed, and a clamping strip can be clamped below. A flashlight lighting device is also arranged on the reel shell, and a transparent cover 1 is arranged outside the opening of the reel shell, and an electric ball is fixed in the transparent cover, which is connected with the battery in the top battery cavity through a wire, and is provided with a switch 7, which is installed at the back of the handle.
The patent specification in this case has only one plane structure.
The Patent Reexamination Board, in accordance with Article 26, paragraph 3, of the Patent Law, made a decision to examine the request for invalidation No.6972, and declared this patent invalid [5]. If the respondent refuses to accept it, he brings an administrative lawsuit. The Beijing No.1 Intermediate People's Court made an administrative judgment of (2005) Zhongyinchu No.562 [6] and upheld the decision of the Patent Reexamination Board No.6972.
The legal issues involved in this case are discussed one by one below.
1. The focus of this case is whether the instructions are fully disclosed and whether the technicians in the technical field can reproduce the invented products according to the contents of the instructions. Among them, the main problem is whether the technical characteristics of "open shaft sleeve" are expressed completely.
In this case, the manual only gives a picture, and the "open sleeve" has no label for this part. As we all know, drawings are the language of engineers, and they are crucial technical documents when describing or manufacturing a product. Under certain conditions, the technical scheme expressed in drawings is often clearer and easier to understand than words. As the main technical feature in the technical scheme, its integrity is related to the integrity of the whole technical scheme. There are at least two aspects to consider whether the technical features or parts of a car body are completely described: first, whether the structure of the parts themselves is completely described, so that readers can clearly know the structure of the parts by reading the instructions; Secondly, whether the connection relationship between this part and other parts is completely described, so that readers can clearly know the connection relationship and position between this part and other parts by reading the instructions.
As far as the disclosure method of the instructions mentioned in this topic is concerned, the general way should be the combination of "text description and drawings" If the written expression of the manual is incomplete, or a specific technical feature of the technical scheme cannot be fully expressed in words, then the manual should give "enough" drawings to illustrate it. The so-called full meaning means that for a three-dimensional part or component, according to the common sense of mechanical drawing, at least two directions of plane view or a certain angle of three-dimensional view are needed to clearly and completely express its own structure and its connection relationship with other parts or components. If necessary, it may be necessary to use a partial enlarged view or a sectional view for supplementary explanation.
Second, from a legal point of view, "full disclosure of patent specifications" is a mandatory legal obligation set by law for patentees. Furthermore, if the patentee fails to fulfill this obligation, the direct legal consequence is the loss of the patent right.
In the invalid procedure, when the patentee is accused of failing to fulfill the legal obligation of "full disclosure", "existing technology" becomes one of the defenses adopted by him. Specifically, the obligee provides evidence to prove that the technical scheme or technical features that are not completely and clearly recorded in the accused manual belong to "known technology". Prior technology can also be called prior technology, which refers to the technical content that existed before the patent technology application date, and of course includes common sense such as various manuals or textbooks. Legally speaking, these technologies can be known to technicians in their fields before the filing date. Once the patentee proves that the alleged unclear and incomplete technical scheme actually belongs to the existing technology, its obligation of "full disclosure" can be regarded as fulfilled.
Based on this consideration, the patentee in this case put forward eight prior patent documents containing the technical characteristics of "open sleeve" as defense evidence that "open sleeve" is the prior art before the filing date.
When the patentee uses specific evidence to prove the clarity and completeness of the instructions, the evidence needs to have the following characteristics:
1. The publication date of all evidence documents shall be earlier than the application date of the patent involved.
2. Consistency in technical fields.
The patentee shall prove that the alleged incomplete technical scheme or technical features exist in the records of existing technical documents and belong to the same technical field as the patent involved.
Paragraph 3 of Article 26 of China's Patent Law stipulates that the full disclosure of instructions includes two requirements and one standard, namely, the above-mentioned "clear and complete" requirement and the evaluation standard of "subject to the realization of technicians in their technical fields". The "technical field" defined in this standard is exactly what the obligee needs to prove in specific legal procedures.
Some technical terms or technical features in a specific technical field should be familiar to ordinary people in this field. For other technical fields outside this field, the same technical terms may exist, but their meanings and functions are likely to be quite different from this technical field. The law also stipulates that "technicians in their technical fields" will only consider the same or related technical fields, so evidence documents in other technical fields cannot be considered.
The Beijing Higher People's Court gave relevant reference opinions on the meaning of "the same technical field". The same technical field shall be determined according to the lowest classification position of the International Patent Classification Table (IPC). If the technical topics of a patent application and comparison document can be classified in the same lowest classification position in IPC, the patent application and comparison document should belong to the same technical field. [7]
3. Uniqueness and certainty of authentication content.
The patentee needs to prove that the accused content is "existing technology", which existed in public publications before the filing date, and was known to technicians in this technical field before the filing date. Usually, a certain technical feature or technical term may exist in multiple files, just as in this case, the technical feature of "open sleeve" exists in at least eight comparison files at the same time. This requires the uniqueness and certainty of the same content involved in multiple documents.
"It can be realized by technicians in the technical field" is a legal measure of "patent specification is fully disclosed", and "technicians in the technical field" is the main body of this measure, but the legal assumption is not creative. If some technical features or technical terms existing in the prior art are not unique and uncertain, then there is a problem of selecting and applying them. That is, in many cases, choose a case where the patent in this case is applicable to supplement the accused content. However, this selection process often requires creative labor, in other words, it is impossible for technicians in their technical fields.
The so-called uniqueness and certainty of technical features or technical terms, and even technical solutions, means that the specific structure expressed by a technical feature or technical term is unique, the functions and functions played in the overall technical solution are essentially the same, and the technical effects obtained are basically the same.
As far as this case is concerned, the "open shaft sleeve" exists in eight comparison documents at the same time, so it is necessary to specifically examine whether the structure of the "open shaft sleeve" in the eight comparison documents is consistent, whether the functions and functions of the "open shaft sleeve" in each technical scheme are the same, and whether the technical effects obtained are the same. If one of the comparison results of the above contents is negative, the patentee may not be able to prove the integrity of the accused contents.
"Full disclosure of patent specification" is a legal invalid reason often used by the claimant in invalid procedures. Due to the introduction of "technical personnel in the technical field", there are inevitably some subjective uncertainties in the result of evaluating whether a patent specification is fully disclosed, but the overall evaluation standard can still be grasped. After the patent document application is made public, the added content is greatly restricted, but once it is accused of insufficient disclosure, it is really very difficult to prove the objective document defects. This requires the inventor to describe his invention as detailed as possible in the process of writing the application documents, which is very important for obtaining and maintaining the patent right.
This paper only discusses some legal problems of "full disclosure of instructions" from a small technical scope, which is for the reference of industry personnel only, and other deeper problems need further study.
References:
[1] Zheng: Intellectual Property Law (2nd Edition), Law Press.
[2] People's Republic of China (PRC) Patent Law, 2000.
[3] Review Guidance, 200 1
[4] China National Intellectual Property Administration Legal Department: Detailed explanation of the new patent law, Intellectual Property Press.
[5] The Patent Reexamination Board's decision on the request for invalidation No.6972.
[6] Beijing No.1 Intermediate People's Court (2005) Zhongyinchu No.562 Administrative Judgment.
[7] The Third People's Court of Beijing Higher People's Court: "Intellectual Property Trial Norms", Intellectual Property Publishing House.