On The Case Of Bosuer Company Against The State Intellectual Property Office For Invalidating Patent Rights

Under China’s current patent system,utility models are granted after preliminary examination by the patent administration department of the State Council if no grounds for rejection are found,which makes the substantive examination of utility models mostly occur at the stage of invalidation proceedings and administrative litigation.The case in this paper is an administrative case between Boshier and the State Intellectual Property Office regarding the invalidation of utility model patent rights,and the dispute between the two parties focused on priority and creativity.The key to verifying priority is to determine whether the two successive applications are on the same subject matter,which involves a focus on avoiding confusion with similar provisions on identical inventions and creations in systems such as novelty and the prohibition of repeated authorisations.The determination of creativity boils down to determining whether the prior art gives technical enlightenment to solve the technical problem actually solved by the invention,and the judgment of technical inspiration requires the accurate use of such basic elements as "the closest prior art" and "a person skilled in the art".Specifically,to verify the same subject matter of the utility model,the claims of the later application should be compared with the claims,specification and attached figure in the earlier application,and the four elements of the technical field,the technical problem solved,the technical solution and the expected effect should be considered as a whole,and then whether the later application meets the "clearly documented" requirement.When determining the inventiveness of a utility model,the principle of holistic consideration should be followed to identify the closest prior art as a comparative document,a combination of subjective mental evidence and objective investigation should be made to grasp the knowledge and ability of those skilled in the field,and the relationship between the results of conventional experiments being common knowledge and well-known facts being common knowledge should be made clear to clarify the scope of common knowledge.Through analysis and argumentation,this article believes that the patent in question enjoys priority and has creativity.The system of utility models should be optimized in accordance with the pace of the country’s comprehensive promotion of high-quality development,and the shortcomings and problems should be found from practical experience and overseas comparisons,so that the formulation and revision of legal provisions can be aligned with the standard of "fine and deep" and the objectivity of the process of confirmation of rights can be strengthened to better meet the new requirements of the new era.