Research On The Rules Of "Common Knowledge" In Patent Creative Judgment

The recognition of common sense serves the judgment of patent creativity.Although common sense is only one of the factors to judge the enlightenment of technology,when it comes to creative judgment,the frequency of quoting common sense is very high,and its determination often becomes the key factor that affects the authorization and survival of patent right.But there are many controversies in the application of common sense system in our country.These controversies focused on two main areas:First,the definition of the connotation and extension of common sense.The reason for this dispute is that our country does not directly define it in the Patent Law and the rules for the implementation of the Patent Law,but only in the Patent Review Guide and the Patent Review operating procedures with extremely limited definition,its limited enumeration of three carriers of the provisions obviously can not meet the requirements of the rapid development of inventions.The second controversies is the rule of common sense.Among them,the dispute against the rule of proof is particularly strong,the administrative organs and even the court usually do not prove the common sense of public knowledge,this "Authoritarianism" problem will obviously destroy "due process of law ",contrary to procedural justice.Therefore,there is an urgent need to study these issues.This paper uses the methods of semantic interpretation,case analysis and comparative analysis to study the above problems,through the discovery of problems,analysis of problems,put forward suggestions of the line of thinking.This paper consists of three parts: introduction,text and conclusion.The main body is divided into the following four chapters:The first chapter of this paper clarifies the connotation and nature of common knowledge.First of all,the existing provisions of common knowledge are summarized.Secondly,it clarifies the connotation and nature of common sense and tries to define it.Then we analyze the difference between common knowledge and existing technology and well-known facts.Finally,the paper discusses the position order and function of common knowledge in creative judgment.The second chapter mainly discusses the rules of common sense identification under the three-step method of creative judgment.This chapter first discusses the theoretical basis and principles of identifying common knowledge.Then this article has carried on the thorough interpretation to existing common sense confirmation rule.Finally,through thetypical case of Beijing High Court(Huawei v.Administrative dispute case of Patent Review Committee),this paper show the problems existing in the rules of public knowledge identification: the narrow scope of identification and the vague responsibility of public knowledge proof.The third chapter examines the relevant provisions of the United States,Europe and Japan on the definition of common sense of public knowledge and the corresponding proof methods in order to learn from some more advantageous experiences.The fourth chapter puts forward some suggestions to improve the rules of common sense identification.First of all,it is clear that the overall level of patent creative judgment should be matched with industrial policy.Secondly,it gives a reasonable definition of common sense under the premise of clarifying the connotation of common sense,the definition can better meet the needs of technological development in the future scientific and technological revolution by qualitative and illustrative way,and it is also operable.Finally,the burden of proof of common sense should be clarified.The last part is the conclusion of this paper.The application of common sense rules can not be contrary to the theoretical basis of establishing this system or beyond the legislative intention of establishing this system.