Research On Judicial Determination Of "creativeness" Of Patent Rights

China's patent law started late,and most scholars' research is mainly focused on the determination of standards in the examination stage.On the litigation stage,the research on the determination of the “creativeness” of invention patent rights is relatively rare.In practical cases,the Patent Reexamination Board and the court have great differences on the common knowledge,the ability of technical personnel in the field,and the existing technology in determining the “creativeness”of invention patents.The reason is that the legislative provisions of “creativeness” are ambiguous.Deviations of professional knowledge of judges,different “creative” judgment processes,and judges' over-reliance on technical investigators.Taking the relevant jurisprudence of invention patents as an entry point to analyze foreign creative judgment standards,China also needs to expand the scope of our country's common knowledge,refine the capabilities of technical personnel in the field,and appropriately expand the scope of the technical field in the judicial determination of patent creativity.In the identification of common knowledge,the academic conference materials,technical information appearing in guiding cases,etc.are added as the basis for the identification of common knowledge,and a certain degree of flexibility is maintained.The knowledge level and experimental ability of those skilled in the art should be refined,and it should be determined that the person skilled in the art has a certain creative ability,and specific quantitative standards should be determined for the creative ability of the person skilled in the art.When searching for existing technology,the technical field should be expanded to areas with similar functions and multiple comparison documents should be integrated to evaluate whether the invention patent is “inventive”.Finally,from the perspective of coordinating the judiciary and administration,the feasibility and necessity of the judge's determination of common knowledge and existing technology in accordance with their powers and powers is demonstrated,and it is pointed out that the examiners and judges should objectively identify the ability of technical personnel in this field,strictly in accordance with the law.After stipulating the competence of the technical personnel in this field,if there are still differences,the court should respect the examiner's decision.