The Research On The Cognizance Of Common Knowledge In Patent Law

The definition of "the common knowledge" and identification methods in the Guidelines for Patent Examination,Directly affect the creative evaluation.But the ambiguity of the provision raises many questions,Adhere to the problem-oriented consciousness and return to the origin method,This article mainly studies the connotation of the common knowledge,the legal attribute of identification of the common knowledge in substantive examination,examination of requests for reexamination and for invalidation,and the ultimate solution in the patent invalid administrative litigation.Remove the introduction and conclusion part,this article divided into five parts.The first part analyzes the provisions on the common knowledge in the Guidelines for Patent Examination.The Guidelines for Patent Examination does not define the connotation of the common knowledge,Summarize the scholar's point of view,this article learn from the "constituent elements" method in Anglo-American law,type it from practice.the invalidation procedure is an administrative process of authoritarianism,with the substantive examination,examination of requests for reexamination,they are all office notice about identification of the common knowledge.Prove evidence to prove and Explain the reason are the interpretation of this cognitive process.But also the legitimate requirements of the procedure,and reflects the principle of hearing.On this basis,this article has carried on the reflection to the question about text and theory in three stages.The second part examines extraterritorial provisions and systems of common knowledge.This section analyzes the relevant provisions of the European,American and Japanese guidelines for patent examination and related case respectively,and I summarize the lessons that can be learned.The Japanese Patent Office and the industry's close cooperation,as well as Europe and the United States on the flexible choice of information,all of these have important implications for the optimization of common knowledge in China.The third part elaborates the concept of office notice and hearing principle.This strengthens the common knowledge of the identified as a conclusion of administrative cognition.The principle of hearing is an indispensable part,And proposed amendments to the provision about the common knowledgein the Guidelines for Patent ExaminationThe fourth section analyzes the main situations and practices about the court identified the common knowledge,through three typical casesin the patent invalid administrative litigation.And pointed out that under the dynamic judiciary,judicial notice has been formed.The Supreme Court that the court can take the initiative to introduce the common knowledge to judge the effectiveness of patent rights.This is useful for avoiding recurring litigationThe fifth part discusses the construction and perfection of judicial notice of identification of the common knowledge.this paper examines the necessity from the perspective of patent policy,And from the institutional rationality further illustrates the feasibility.The main body of technological innovation is entrepreneurs.So when we set the standard on the evaluation of creativity and the common knowledge,we must take into account the business of the technology and the industrialization of the possibility and value.The procedure can guarantee substantive justice.The simplified procedure makes the judge judicial notice of the common knowledge in the patent invalid administrative litigation.This can take into account efficiency and fairness and really promotes innovation.Regardless of international trends or improve the existing rules of evidence system,the establishment of intellectual property courts and the setting up of technical investigators provide a realistic basis for the possibility and realization of judicial notice.In addition,the first trial of these systems may be of great benefit to patent reform.They are hearings about the common knowedge and public patent review mechanisms.