Study On The Proof Problems Of Prior Public Use In Patent Invalidation Procedure

In the review of invalid declaration cases and judicial practice,it has always been a difficult issue whether a patent has been disclosed due to prior use of the technology.Therefore,it has great significance for the realization of the patent invalidation procedure to protect public interests and improve the quality of patents that by analyzing the current law and invalid declaration case to clarify the proof rule in the invalidation procedure and the improvement of its related systems.The public use as a key point,search date as of December 31,2017,retrieved 289 invalid declaration cases,screening of utility model patents and invention patent invalidation decisions,in fact,as a sample of 185 cases.Through the reading and analysis of these cases,it sums up the difficulties in the public use,and the attitude of the Patent Reexamination Board in the review of invalidation declarations for proof standards,proof of responsibility,and specific evidence.Generally speaking,in the practice of invalidation proceedings,the proof standard is generally used as a proof on a balance of probabilities in civil procedure;for the distribution of burden of proof,the allocation of burden of proof in the procedure of invalidation is basically adopted in the civil procedure.in exceptional circumstances,Considering proof ability of invalidation claimant and the patentee and the nature of the facts to be proved,if assigning the burden of proof according to the general principle may produce unfair results,there will be an inversion of the burden of proof.In the aspect of evidence identification,through the empirical analysis of the frequency of evidence and the focus of disputes in the case,it is found that the following four types of evidence aredifficult or controversial to identify:the examination of the requirements of the forms of extraterritorial evidence,the authenticity and the public time authentication of the network evidence,the role of confidentiality agreement the public determination and the confirmation of the authenticity and relevance of the product description evidence.Summarized through further analysis of the case,clarifying the practice of evidence review by the Patent Reexamination Board in the review practice,it provides useful reference for the parties' evidence-raising activities and further amendments to the law.On the basis of case analysis,using sales behavior as an example,we can draw inspirations that prove that the sales behavior leads to the disclosure of technical solutions.The following points are put forward for the public use certification rules and the identification of evidence in the invalidation procedure:First,the public use certification standards in the invalidation procedure should appropriately stipulate the evident superiority evidence standard and superior evidence standard in administrative litigation on the basis of the a "proof on a balance of probabilities"standard;Second,the provisions on the burden of proof in administrative litigation are written into the patent invalidation request phase,and the situation where the applicable burden of proof is reversed is written into the legal provisions;Third,the Patent Reexamination Board is relaxed to collect evidence for the investigation;The fourth is to improve the rules for evidence identification in the Patent Examination Guidelines.