Comment On The Case Of Invention Patent Invalidation About Elecon SA V. Patent Reexamination Board

About the regulations of necessary technical features in the independent claim is recorded in the second part of Article 20 in Detailed Regulation.But there isn't any requirement in Patent Law on technical problems yet to solve when it comes to identifying necessary technical features.So in judging the corresponding claim in the necessary technical features of technical problem,whether the technical problems yet to solve by patent is the same as the technical problems which are found when to judge if the invention is creatively enough when it is combined with the latest technology,different parties hold different view on patent practice.Elecon prosecuted the Patent Reexamination Board of invalid invention patent's case is a typical case regarding whether the independent claim has any record of necessary technical features' role in solving technical problems.The core controversy of this case is concentrated on identification of implicated patent technical problems and if the second part of Article 20 the Detailed rules for the implementation of the patent law has any contradiction with the 4th part of Article 26 in Patent Law.In current law practice environment,the technical problems which should be solved by necessary technical features may have different features per latest existing technology.Thus,separating technical problems which are related to necessary technical features from technical problems which are related to the invention and,holding the view of subjective technical problems is just a subjective judgment of the value of an invention or utility model.Thus it is not suitable to use it to judge if independent claim is lack of necessary technical features.About the apply relationship between the second part of Article 20 in Detailed Regulation and Article 26 of Patent Law.If independent claim fail to reflect technical solutions overall,and lack of some parts,but if the specification reveal the whole technical solutions,then we can use the 4th part of Article 26 of Patent Law to replace the item of necessary technical features,which is "unclear".If independent claim fail to reflect technical solutions overall,and lack of some parts and the specification also fail to reveal the whole technical solutions,then we can use the 3rd part of Article 26 of Patent Law to replace the item of necessary technical features,which is "the specification is not fully disclosed".In this case,The supreme people's court considers that the application of the 4th part of article 26 of the patent law is more extensive and should be applied first.Thus,the second part of Article 20 in Detailed Regulation should be separated from Rejected Reasons and Invalid Reasons,and it shouldn't exist as the reason for invalid reasons.Take the example of necessary technical features in countries around and regions around,it has appeared in Patent Examination Guidelines level.So the item still has its value in Examination tools in Examination phase.In this case,claim 1 have the features of functional qualification of the supporting device.In this field,technicists don't know that this function can still be replaced by other methods which aren't mentioned in specifications to solve technical problems which will support invention.So the claim fails to get support from the specification.After identifying claims can't get support from specifications,the Patent Reexamination Board don't need to hear claim l's necessary technical features.