Discussion On The Judgment Of Patent Priority Of “Same Subject”

Since the establishment of the Paris Convention patent priority system,only universal and general provisions have been made in the substantive examination of patent priority.On the basis of complying with the Paris Convention framework system,countries have further elaborated the substantive examination rules of patent priorities in different degrees.However,the key to substantive examination of patent priority lies in the judgment of “the same subject”,while the “same subject” involves technical solutions.The expression of technical solutions in patent application documents is diverse,and the interpretation of technical solutions in the judgment process is easy to cause different,which leads the “same subject” judgment to different conclusions.Although China has also further refined the substantive examination of patent priority,in the review practice of “the same subject” judgment,there are still problems such as unclear definition of subject,unclear subject scope,and unreasonable criteria for the “same subject”.All in all,the degree of refinement needs to be further refined to form a concrete,stable and unified norm.In the definition of the theme,it is further clearly interpreted as “technical solution”,and the determination of “technical solution” should not only focus on the technical characteristics itself,but should be combined with specific technical problems to form a complete and implementable technical solution.In the judgment of the scope of the subject,the scope of the corresponding subject matter of the subsequent application and the prior application is determined by analyzing and comparing the “umbrella theory”,the “fiction theory” and the “support theory”.Wherein,the technical solution unit for solving one or more technical problems is set as a minimum unit,and considering the integrity of the technical solution,the scope of the subject matter of the latter application should be the technical solution unit defined in the following application claims;In the case of a generalization,the scope of the subject matter of the subsequent application should be determined as the technical solution summarized above and all the various subordinate embodiment units covered.When looking for the “subject” corresponding to the previous application,the public technical content of the prior application should be considered as a whole.It is generally not advisable to combine a plurality of parallel technical features extracted from independent embodiment or technical solution in the prior application,but to find a corresponding technical solution in the respective independent technical solution units.In the same judgment standard,the novelty judging standard was adopted in the early stage,but the novelty judging standard was relatively broad.In the practice of examination,the over-range judging standard was gradually adopted,and formed as the current mainstream judging standard to adapt the principle of first application.However,the over-range judgment standard is relatively strict,and the wisdom contribution made by the applicant on the priority date is often not fully guaranteed in the practice of review.Therefore,based on the reference to the America supportive judgment criteria,the concept of “subtle changes” is introduced,and a relatively loose “substantial equivalence” judgment standard is proposed.