A Study Of The Creative Judgment Of Markush's Claim

The Markush claim is widely used in chemistry,medicine and other technical fields because of its special generalization function.In China's patent examination guide,only the oneness of Markush's claim is stipulated,but there is no more specific stipulation on other issues of Markush's claim.Therefore,in practice,there are many disputes on the issue of Markush's claim.Especially in the creative judgment involving the Markush compound,although our country has experienced quite a lot of practice in the creative judgment,there is still no unified standard among examiners,patent agents,applicants and the public.This article mainly uses the case analysis method and the comparative research method.This paper introduces the main problems in the creative judgment of Markush's claim with practical cases,and analyzes the various elements in the creative judgment,and puts forward some suggestions for the creative judgment of Markush's claim in China.Firstly,the nature of Markush's claim is analyzed,because the different understanding of its nature will influence the judgment of its creativity.Secondly,it analyzes the current situation of the creative judgment of Markush claim in China and the particularity of Markush claim in creative judgment,and introduces the main problems in the creative judgment of Markush claim with practical cases.Thirdly,the author analyzes the elements of Makush's claim in creative judgment and compares the differences between China and other foreign countries.Finally,based on the understanding of the nature of Markush's claim,through the analysis of the creative criteria and drawing on the experience of creative judgment abroad,this paper puts forward some suggestions for the creative judgment of Markush's claim in China.This paper puts forward suggestions from four aspects: the determination of existing technology,whether there is technical enlightenment,the application of unexpected technical effects and the distribution of burden of proof.The nature of Markush's claim cannot be simply understood as a whole technical scheme or a collection of juxtaposition technical schemes,and the "integrity" and "juxtaposition" are its natural attributes.Therefore,when judging the determination of the open facts of prior art,the determination of the compounds in the general formula of prior art should be specifically analyzed.The identification of technical enlightenment is closely related to the ability level of technicians in the field and the difference of technical characteristics.Both "unexpected technical effect" and "three-step method" play an important role in the creative judgment of patent.In the distribution of burden of proof,in the substantive examination,the inventor shall prove that his invention is creative.In the invalidation procedure,the invalid claimant shall prove that the patent is not creative.