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Study On The General Common Knowledge In Patent Law

Posted on:2018-08-31Degree:MasterType:Thesis
Country:ChinaCandidate:Q Q MoFull Text:PDF
GTID:2346330515990482Subject:Intellectual property law
Abstract/Summary:PDF Full Text Request
Common General Knowledge is an important consideration to assess inventive step of patent.This paper will base on the concept of Common General Knowledge and research on its relative issues in the perspective of patent declaratory action.It is always critical that the recognition of Common General Knowledge from the court and the Patent Reexamination Board lack of demonstration.The idea of this paper is to find the problems in judicial practice and then,analyzes the problems combining with the existing laws and regulations and the foreign experiences,and finally concludes the suggestions.In this paper,the theoretical basis is the sources,concept and relative stipulations of Common General Knowledge.The problems are raised in situations and the ways to recognize Common General Knowledge in judicial practice.The comparative analysis focuses on the way to recognize and prove Common General Knowledge in stipulations and practices in the USA,Europe,Japan and Taiwan and the suggestions are about the revision of rules on proof and recognition of Common General Knowledge.The first part of this paper is to support the research in respect of theory.First of all,it introduces the theoretical sources and legal basis of Common General Knowledge.Then,it clarifies the definition and the scope of Common General Knowledge to distinguish it from the concept of “Well-known facts”,“Existing technology”,“Judicial notice” and “General technical knowledge”.Lastly,it introduces the stipulations of Common General Knowledge in existing laws and regulations to show its legal environment.The second part investigates relative regulations and ways of proof in the USA,Europe,Japan and Taiwan for comparative study.In this part,the paper inspects on the applicable situations of Common General Knowledge in these districts to analyze the standard,subject and carrier of assessment,the judicious attitude of examiner and the differences of proof among them respectively.The third part analyzes the judicial recognition of Common General Knowledge basing on the cases from the Supreme People's Court,Beijing Higher People's Court and Beijing First Intermediate People 's Court and 64 cases from Beijing Intellectual Property Court.The paper classifies these cases by the situation,the way and the result of judicial recognition,and find the problems in accordance with whether,how and what to identify in court's decisions.The fourth following analyzes these problems in terms of trial,proof and restriction.Firstly,“court authority” and “overreliance on court” are critical;Secondly,the parties are not positive to prove resulting in the proof of Common General Knowledge is simple.Thirdly,the attitudes towards adoption of Common General Knowledge as new evidence are inconsistent and lastly,the restrictions need to be expanded as the subject and carrier of assessment are changing with the development of technology.The fifth part revises the rules on the proof and judgment of Common General Knowledge.Firstly,the court and the Patent Reexamination Board should hold the idea of justice and efficiency when adapting Common General Knowledge.Secondly,the court should be in a leading position to control when recognizing Common General Knowledge.Thirdly,the evidence should be given priority to and full description is complementary when it comes to the proof.Fourthly,considering new evidence,it should take the idea of “limited adoption,” the premise of which is that the parties will be completely deprived of relief if the new evidence is not adopted.Fifthly,the carrier of Common General Knowledge should be expanded to adapt to the reality.The sixth part is epilogue.Common General Knowledge is very important to judicial practice.It is an important concept to assess inventive step of patent.In patent declaratory action,the application of Common General Knowledge should comply with the basic legal value--justice and efficiency and should be considered from multiple perspectives to adapt to the reality.
Keywords/Search Tags:Patent Declaratory Action, Common General Knowledge, Court Authority, New Evidence
PDF Full Text Request
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