The Empirical Study Of The Applicable Standard For Paten Examination And Review

Substantive examination of the patent refers to that when the Patent Officeexamining a patent application, not only should it examine the formal requirements ofthe application, but also examine the novelty, inventiveness, practical applicability ofthe invention. Patent reexamination hereby refers to an examination procedure madeby the Patent Re-examination Board upon the request of the applicant who do notaccept the rejection decision given by the State Intellectual Property Office, or uponthe request of someone declaring the patent rights to be invalid after the patent hasbeen granted. Reexamination procedure, in nature, belongs to the administrativereview procedure. In recent years, domestic patent applications are increasing rapidly.Meanwhile, the number of the substantive examination cases which have beenrejected but revoked in the reexamination procedure are increasing. In theseexamination procedures, for the same examination documents, the examinationdecisions made by the same examination department in two examination phases couldbe different, or the decision made by the substantive examination department and thepatent reexamination board are different. The different examination results betweenthe substantive examination procedure and the reexamination procedure willinevitably reflect the differences of the examination standards.In this paper, through statistical description method and case study method, Imake a statistical analysis on the main IPC classifications of the chemical field. Firstly,to search those typical Chinese patent application cases of chemical field which havebeen rejected in the past but finally been revoked from2008to2012; Secondly, toanalyze the real and detailed situations of different patent examination procedures.Analysis shows that:(1) The quantity of reexamination requests are increasing yearby year;(2) All fields of the reexamination request and the trends are difference;(3)The files of reexamination are centralized relatively;(4) The proportion of Each kindof reexamination applicant is diffenrent. By using extensive analysis of theserepresentative cases,to find out the main differences in various respects between thetwo examination procedures:(1) The differences of affirmations between the technicalproblems and technical solutions;(2) The differences for affirming the scope ofprotection of application documents;(3) The differences for affirming existingtechnology. The causes of these differences are that:(1) The relevant laws and regulations are not perfect and clear;(2) The quality of writing application documentsand reply is low.(3) The legal professional knowledge and technical level of theexaminer are not enough;(4) The attitude of the examiner is not firm. To maintain theright of applicants they deserve legally, and to reduce those differences, we shouldmake the following efforts on system design and management:(1) Improve therelevant laws and regulations, supplement and refine review guidelines;(2)Standazdize the management system of examiners, establish an effective managementsystem;(3) Improve the legal knowledge and technical professionalism of examiners;(4) Strengthen the protective awareness of the applicant, improve the professionalskill of the patent agent.