Research On The Related Issues Of Common Knowledge In Patent Law

In China's patent examination practice and judicial practice,common knowledge has always been the key factor to determine creativity,is an important indicator of authentic right and patent right validity,and plays an important role in the whole life cycle of patent.However,there has been no clear definition of the concept and scope of common knowledge for a long time,which leads to not only individual differences in the understanding and interpretation of common knowledge,but also different cognitive boundaries in various legal stages.In the identification of common knowledge,there is no consistent standard and method,which leads to different conclusions on identical characteristics in different legal stages.In the proof of common knowledge,it is difficult to provide common-knowledge evidence under the current legal system,and it is difficult for the applicant or the reexam claimant to accept the full reasoning of proof,and it is difficult to avoid the abuse of common knowledge.These are all hot issues to be solved urgently in practice.This paper mainly discusses the following aspects:Firstly,the concept and understanding of common knowledge are studied.Common knowledge usually means the common knowledge possessed by the intellectuals with academic background and professional quality.Common knowledge in patent law should be the concrete application of common knowledge concept in patent law field,It should be the common knowledge in the field belonged to those skilled in the art.This paper analyses the understanding of common knowledge in law and practice.Common knowledge has six attributes.This paper analyses the legal value of common knowledge and expounds the main issues in practice.Secondly,the identification of common knowledge is studied in detail.In practice,objective justice is a general principle for the identification of common knowledge.Taking those skilled in the art as the main body,The starting point is to solve a specific technical problem from a specific technical field.This paper summarizes the legal logic of the identification process,and expounds the key factors to be considered in the identification of common knowledge.Thirdly,the proof of common knowledge is deeply studied.Current laws only prescribe textbooks and reference books as common-knowledge evidences,which makes it difficult to use common-knowledge evidences by documentary evidence in practice.The principle of proof is who advocates and who is the burden of the proof.The way of proof is to use common-knowledge evidences or full reasoning.It is necessary to clarify common knowledge and common-knowledge evidences.The scope of common-knowledge evidence needs to be expanded.The whole life cycle of patent can supplement common-knowledge evidence.Fourth,it analyzes the related issue of common knowledge abusing.The examiners' prior empiricism,afterwards Zhu Geliang,personal subjective judgment,not start from the technical scheme as a whole,but arbitrary,one-sided,fragmented identification of technical means,and the identification of key technical means as common knowledge will lead to the abuse of common knowledge,so we need to regulate the abuse of common knowledge.Based on the above research,some suggestions are put forward in terms of the concept and definition of common knowledge,the unification of the criteria for the identification of common knowledge,the expand of the scope of evidence for common knowledge and the prevention of abuse of common knowledge,and the corresponding suggestions are briefly discussed.