Legal Issues or Fact Issues? -- Novelty in American Patent Law

"What kind of problem is a factual problem?" "What kind of problem is a legal problem?" As the name implies, "factual problem" is about the determination of the facts of the case. Correspondingly, "legal problem" is about the determination, interpretation and application of legal rules. The interpretation of these two concepts depends on the understanding of "fact" and "law. If there is a qualitative difference between the "facts" and the "law" in the proceedings, the decisions on them can be screened qualitatively.

The judge determines the applicable law through "direct judicial notice", that is, the so-called "judge knows the law", and finds that the facts are used as the medium of evidence provided by the outside world, so there will be a discrepancy between the facts and the truth. In other words, what should be proved by the evidence of the parties, but may not be correctly identified, is the fact; and what can be evaluated or determined through the direct cognition of the judge is the law. This allows for an epistemological division of law and fact.

Novelty is described in Section 102 of the U.S. Patent Law:

Conditions for patentability; loss of novelty and patent rights A patent may be granted if one of the following circumstances does not exist:

(a) has been known or used by others in this country before the invention and application by the patent applicant, or has been patented or published publicly in a printed publication at home or abroad, or

(B) One year before the application for a patent in the United States, the invention has been patented or published in a printed publication at home and abroad, or is publicly used or sold in China, or

(c) has renounced the inventor, or

(d) twelve months before the application for a patent or certificate of invention in the United States, the invention has been patented, or is about to be patented, in another country by the applicant or his legal representative or assignee, or the subject of the certificate of invention has been obtained, or

(e) prior to the applicant's invention, the invention was found in an approved patent applied for in the United States by another person, or in an international application by another person, meeting the requirements of section 371 (c) (1)(2) and (4), or

(f) the person who wishes to obtain the patent is not the inventor who is the subject of the invention, or

(g) before the invention of the patent applicant, the invention has been made in this country by another person and has not been abandoned, prohibited from distribution or hidden in this country. In determining the priority of an invention, consideration should be given not only to the connection between the conception of the invention and the date of its implementation, but also to the expedient efforts of the other person before the conception and later than the person who put it into practice.

When evaluating novelty, it is usually necessary to use prior art, that is, existing technology. The existing technology may contain other substances. If the relevant single existing technology contains all the elements claimed in the patent, we say that it predicts the product or method. The process of this prediction is a matter of fact. Because in this process, we need to give evidence to explain, and it is about the determination of the facts of the case.

The main task of the jury is to determine the facts of the case. In almost every case, the parties dispute some of the facts of the case. Usually, the facts in dispute relate to the causal relationship between negligence or negligence and the result of the infringement. Even if these facts are agreed by both parties, they may not be the facts that cause the plaintiff's rights to be infringed. As long as the evidence reflects a dispute over past events, the jury has to make a determination. Therefore, in U.S. patent law, novelty is generally determined by a jury.

"What kind of problem is a factual problem?" "What kind of problem is a legal problem?" As the name implies, "factual problem" is about the determination of the facts of the case. Correspondingly, "legal problem" is about the determination, interpretation and application of legal rules. The interpretation of these two concepts depends on the understanding of "fact" and "law. If there is a qualitative difference between the "facts" and the "law" in the proceedings, the decisions on them can be screened qualitatively.

The judge determines the applicable law through "direct judicial notice", that is, the so-called "judge knows the law", and finds that the facts are used as the medium of evidence provided by the outside world, so there will be a discrepancy between the facts and the truth. In other words, what should be proved by the evidence of the parties, but may not be correctly identified, is the fact; and what can be evaluated or determined through the direct cognition of the judge is the law. This allows for an epistemological division of law and fact.

Novelty is described in Section 102 of the U.S. Patent Law:

Conditions for patentability; loss of novelty and patent rights A patent may be granted if one of the following circumstances does not exist:

(a) has been known or used by others in this country before the invention and application by the patent applicant, or has been patented or published publicly in a printed publication at home or abroad, or

(B) One year before the application for a patent in the United States, the invention has been patented or published in a printed publication at home and abroad, or is publicly used or sold in China, or

(c) has renounced the inventor, or

(d) twelve months before the application for a patent or certificate of invention in the United States, the invention has been patented, or is about to be patented, in another country by the applicant or his legal representative or assignee, or the subject of the certificate of invention has been obtained, or

(e) prior to the applicant's invention, the invention was found in an approved patent applied for in the United States by another person, or in an international application by another person, meeting the requirements of section 371 (c) (1)(2) and (4), or

(f) the person who wishes to obtain the patent is not the inventor who is the subject of the invention, or

(g) before the invention of the patent applicant, the invention has been made in this country by another person and has not been abandoned, prohibited from distribution or hidden in this country. In determining the priority of an invention, consideration should be given not only to the connection between the conception of the invention and the date of its implementation, but also to the expedient efforts of the other person before the conception and later than the person who put it into practice.

When evaluating novelty, it is usually necessary to use prior art, that is, existing technology. The existing technology may contain other substances. If the relevant single existing technology contains all the elements claimed in the patent, we say that it predicts the product or method. The process of this prediction is a matter of fact. Because in this process, we need to give evidence to explain, and it is about the determination of the facts of the case.

The main task of the jury is to determine the facts of the case. In almost every case, the parties dispute some of the facts of the case. Usually, the facts in dispute relate to the causal relationship between negligence or negligence and the result of the infringement. Even if these facts are agreed by both parties, they may not be the facts that cause the plaintiff's rights to be infringed. As long as the evidence reflects a dispute over past events, the jury has to make a determination. Therefore, in U.S. patent law, novelty is generally determined by a jury.