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!
2. How to break the sentence that the role of so-and-so is common sense in this field?
Not easy to break.
Prove that a technical feature is not common knowledge mainly includes the following points:
1, although the characteristics are the same, but their functions are different.
Specifically, you should explain to the examiner that your folding not only plays the role of holding the thread, but also prevents the bolt from rotating, and there are other * * * * *; And this function has no application in other places; This will do.
2. The technical scheme has achieved unexpected results.
That is to say, clamping wire with hinge has more outstanding advantages than clamping wire in other ways.
3. The technical problem itself is not obvious.
For example, some equipment always breaks down, and no one knows why. After creative work, you find that command is the cause of failure; By simply folding and holding the thread, the problems that have not been solved before can be solved.
If the above conditions are not met, it is difficult to grant a patent.