The application of common knowledge in patent confirmation.

The proof and determination of common knowledge evidence has always been a difficult point in the trial of patent authorization and confirmation administrative cases. For the examiner, due to the lack of evidence of common sense or insufficient evidence, resulting in the patent applicant's objection to this, the increase in the examination cycle. For the applicant or the invalid claimant, if there is an objection to the examiner's determination of common knowledge, the arguments in the statement of opinion revolve around the proof and determination of common knowledge, while ignoring the substantive point of invention. For the judge, the common sense of the Patent Reexamination Board when determining a certain technical feature in the accused decision usually does not provide evidence, or even only assert, which brings a lot of trouble to the judge's case trial. The proof and determination of common knowledge urgently need a reasonable definition.

Legal interpretation of (I) common knowledge

Regarding the specific interpretation of common sense, there is currently no specific judicial definition, and there are divergent opinions in the industry, and there is no unified view. Common general knowledge is explained by way of example in the Patent Examination Guide---The conventional means for solving the re-determined technical problem in the art, or the technical means for solving the re-determined technical problem disclosed in textbooks or reference books, etc.

Based on the understanding provided in the above-mentioned Review Guide, there are still many different determinations of the concept of common knowledge. Some experts believe that with reference to the relevant provisions of the patent examination guide, common knowledge generally refers to the technical means disclosed in well-known textbooks or tools to solve specific technical problems and the customary means to solve specific technical problems in the field. Technical dictionaries, technical manuals, textbooks, and the like can be used as evidence to prove common knowledge. Some experts have expressed different views, arguing that the scope of common knowledge in the patent examination guidelines is not appropriate, that many technical dictionaries, technical manuals and textbooks are highly specialized, and that when solving specific technical problems in a field, can common sense be considered common knowledge in the field? Supreme Court in (2015) Line reference No.12Civil Judgment No. 1 makes it clear that common knowledge is technical or other knowledge commonly known to those of ordinary skill in the art. It can be seen that, based on the viewpoint of the Supreme Court, common sense of life can be considered as common knowledge in the art.

To sum up, at present, there is no unified legal interpretation of common knowledge, and the scope of common knowledge can only be further clarified in combination with the determination of common knowledge by the review board or the court in the trial of the case.

(II) can be used as a carrier of common knowledge

1.Technical dictionaries, technical manuals and textbooks: this is the common knowledge clearly defined in the review guide and the most accepted carrier of common knowledge in authorization and confirmation.

2.National standards, industry standards and other standards: standards refer to a normative document that is used and reused after consensus and approved by recognized institutions in order to obtain the best order within a certain range. In view of the fact that the standard is commonly observed by those skilled in the art, although it does not rise to the legal level, it can be used as evidence to prove common knowledge. such as in the field of communications,TD-SCDMAAfter being negotiated and determined by the Ministry of Industry Information Technology, operators and other departments, the standard has become an important reference material for the research and development, testing, and patent application of technical personnel in the field of communications.

3.Patent literature and journal papers: In judicial practice, patent literature and journal papers are the carriers that the parties use more common knowledge. However, the court is relatively cautious about the determination of patent documents and journal papers, which denies the legitimacy of patent documents and journal papers as the carrier of common sense evidence, and shows the attitude of the court in many invalid administrative dispute cases.

In fact, there are reasons why the court adopts a cautious attitude. First of all, the "Review Guide" does not stipulate that patent documents and journal papers can be used as carriers of common knowledge. As a judicial organ, the court should not expand the scope of application. Secondly, the specific technology, the technical problems that can be solved and the technical effects achieved in the patent literature and journal articles themselves do not have the certainty and accuracy of course, nor are they known. At present, it is not uncommon for patents to be invalid and papers to be falsified, which also reflects the instability of patent literature and journal papers.

4.Authoritative digital resources: the popularity of digital resources makes the form of proof of common knowledge more diverse. Such as Baidu Encyclopedia, Wikipedia and other online encyclopedias, which give relatively professional and authoritative information, and easy to prove, can be used as an important source of common sense evidence. There are also digital resources such as Superstar Science and Technology Digital Library and Reading Show. The teaching materials, reference books, periodicals and other resources included in it can also be used as an important source of common sense evidence. However, in the process of patent confirmation, if there is no other evidence, the above evidence should be at least notarized, otherwise its authenticity can not be determined, the effectiveness of the proof will be reduced.

Allocation of the burden of proof (III) common knowledge

In the process of patent examination, the party who claims that a technical means belongs to the common knowledge in the field has the obligation to bear the burden of proof for its claim. If the party fails to prove or fails to fully explain that the technical means is common knowledge in the art and the other party does not approve it, the technical means shall not be deemed to be common knowledge in the art. Because in patent confirmation disputes, the Patent Reexamination Board uses the examination of the validity of the disputed patent based on the invalidation claimed by the requester, in order to ensure the neutrality and impartiality of the Patent Reexamination Board in the examination process, it is generally inappropriate to take the initiative to introduce common knowledge ex officio, unless the specific technical means should be common knowledge and fully expressed and recognized by all parties, caution should be exercised. Finally, the evidence on which the people's court decides a case must be cross-examined by the court, and the evidence without cross-examination cannot be used as the basis for the people's court to determine the facts and make a judgment.

When using common knowledge to evaluate creativity, common knowledge and distinguishing features should be placed in the overall technical solution, taking into account its correlation with other technical features in function and function, and determining the effect it brings to the technical solution. To see whether the skilled person in the art has a definite expectation of the impact of the common knowledge on the final technical solution, so as to purposefully choose the common knowledge. In the case of patent invalidation, the use of common knowledge to evaluate whether the distinguishing feature has technical enlightenment compared with the existing technology, so as to judge whether the invention or utility model patent is creative, can not mechanically apply the creative evaluation steps of the examination guide, but should thoroughly and comprehensively analyze the technical enlightenment brought by common knowledge, to determine the common knowledge is the common knowledge that those skilled in the art can foresee when solving the technical problem actually to be solved by the patent.

Common knowledge as a technical solution for evaluating patent claims is not a creative weapon, and when the distinguishing feature is common knowledge in the field, the claim is not creative, thus achieving the purpose of invalidating the patent.

File Source:Application of "Common Knowledge" in Creative Evaluation of Patent Invalidation Cases