专利创造性判断比较研究
发布时间：2018-09-19 16:15
【摘要】：对我国专利行政案件的实证分析表明,创造性判断是专利行政案件最突出的重点和难点,但国内还缺乏系统的理论和实务研究。本文围绕我国专利创造性判断中的实务问题,通过与美国和欧洲进行比较系统地研究了专利创造性判断。本文整体上分为两个部分,第一至四章统称为理论篇,主要讨论了专利创造性判断涉及到的基本理论,第五至第八章统称为实务篇,主要讨论了创造性判断的实务问题。本文的主要研究方法有比较研究法、历史分析法、案例分析法和法律经济学分析方法。 长期以来,创造性只是美国司法判例创设的专利性条件。创造性条件先后经历了“发明”、“创造性天赋”、“创造天赋火花”、“非显而易见”标准,判例法表现出了混乱和不确定。联邦巡回上诉法院的成立和美国《专利法》第103条的制定统一了非显而易见性标准,Graham案和KSR案具体发展了该标准。欧洲和国际专利法实体规则的协调促进了创造性制度的统一。比较研究和实证分析都表明,我国的创造性条件并不需要“显著的进步”。比较研究表明,各国的专利创造性在制度和实践层面都出现了大量的法律移植。 美国的情况表明,客观化是创造性判断面临的最大难题,事后眼光和判断者的分散性是创造性判断主观性泛滥的根本原因,具体判断规则的约束和判断主体的集中化和同质化是促进创造性判断客观化的最有效途径。 经济分析表明,最佳的创造性高度是边际社会成本与边际社会收益相等的点,但创造性难以量化分析,因此经济分析难以提供可操作的工具。经济分析表明,各国的创造性判断实践实际上符合经济理性。美国创造性判断标准时高时低,为了应对社会各界的批评,美国最高法院在KSR案中提高了创造性判断标准。创造性判断是定性分析而非定量分析,因此发明和实用新型在创造性高度上的差异在实务中难以区分。 创造性判断应当遵守三项基本原则。创造性判断应当与专利权救济相互协调,这被称为相互协调原则。创造性的判断,应当针对权利要求限定的技术方案整体进行评价,这被称为整体评价原则。创造性判断中应当将技术方案、技术问题和技术效果作为一个整体来看待,这被称为综合评价原则。 专利创造性判断是个法律问题而非事实问题。在创造性判断的行政程序中,专利复审委员会应当严格遵循体现公平原则的听证原则和请求原则。在司法程序中,人民法院只能对具体行政行为的合法性进行审查,不能超出专利复审委员会的审理范围,也不能直接宣告专利权无效,但应当对专利性进行实体判断。专利授权和专利确权的性质不同,举证责任和证明标准应当有所区别。 公知常识包括本领域技术人员的技术常识和日常生活经验,技术常识又分为公知的技术常识和普遍使用的技术常识。记载现有技术的文献被称为对比文件,最接近的现有技术是创造性判断的起点。一般的创造性判断步骤为,解释本专利和现有技术中的技术方案,认定区别技术特征和客观技术问题,认定是否存在技术启示。 选择发明可以分为数值选择发明和种类选择发明。在美国,组合发明的创造性判断经历了协同效果标准的提出、支持、反对等不同的阶段。KSR案最终支持了协同效果标准。协同效果标准只是组合发明具备创造性的必要条件,组合发明的创造性判断应当根据创造性判断的基本原则进行。 辅助判断因素包括商业成功、长期存在但未满足的需求、预料不到的技术效果、他人的失败等。在美国,辅助判断因素包含在Graham要素中,是创造性判断必须考虑的因素。在欧洲,辅助判断因素只是在创造性判断有疑问时才有发挥作用。欧洲和美国的规定在实践中并无本质差异。在实务中,应当重视审查对辅助判断因素与创造性之间的因果关系。 本文的研究表明,在专利创造性判断这个问题上,不管各国表面上的制度有多大差异,但在实践中的做法却惊人地相似,而且基本上都符合经济理性。为了促进创造性判断的客观化、稳定性和统一性,本文提出了一些建议。
[Abstract]:The empirical analysis of patent administrative cases in China shows that creative judgment is the most important and difficult point in patent administrative cases, but there is still no systematic theoretical and practical research in China. The article is divided into two parts as a whole. Chapters 1 to 4 are collectively called theory chapters, mainly discussing the basic theories involved in the judgment of patent creativity. Chapters 5 to 8 are collectively called practice chapters, mainly discussing the practical problems of creative judgment. Methods of economic analysis.
Creativity has long been a patent condition created by American judicial precedents. Creative conditions have undergone the criteria of "invention", "creative genius", "spark of creative genius", "non-obvious". Case law shows confusion and uncertainty. The establishment of the Federal Circuit Court of Appeals and the system of Article 103 of the United States Patent Law The non-obviousness criterion has been established and unified, and the Graham and KSR cases have developed it concretely. The coordination of substantive rules in European and international patent law has promoted the unification of the creative system. The comparative study and empirical analysis show that the creative conditions in our country do not require "significant progress". The comparative study shows that patent creativity in various countries is not necessary. A large number of legal transplants have appeared in the system and practice level.
The situation in the United States shows that objectification is the most difficult problem faced by creative judgment, and the basic reason for the overflowing of subjective judgment is the decentralization of judgment afterwards. The most effective way to promote the objectification of creative judgment is to restrict the concrete judgment rules and centralize and homogenize the judgment subjects.
Economic analysis shows that the best level of creativity is the point where marginal social costs and marginal social benefits are equal, but creativity is difficult to quantify, so economic analysis is difficult to provide operational tools. In response to criticism from all walks of life, the Supreme Court of the United States raised the criteria for creative judgment in the KSR case. Creative judgment is qualitative rather than quantitative analysis, so it is difficult to distinguish the difference between inventions and utility models in creative height in practice.
Creative judgment should abide by three basic principles. Creative judgment should be coordinated with patent remedy, which is called the principle of mutual coordination. Creative judgment should be based on the overall evaluation of the technical scheme limited by the claim, which is called the principle of overall evaluation. Technical effect is regarded as a whole. This is called the principle of comprehensive evaluation.
Patent creative judgment is a matter of law rather than fact. In the administrative procedure of creative judgment, the Patent Re-examination Board shall strictly abide by the principles of hearing and requesting which embody the principle of fairness. In the judicial procedure, the people's court can only examine the legality of specific administrative acts, not exceed the Patent Re-examination Board. The scope of the trial can not be declared invalid directly, but the entity of the patent should be judged. The nature of patent authorization and patent confirmation are different, and the burden of proof and the standard of proof should be different.
Knowledgeable common sense includes the technical common sense and daily life experience of the technical personnel in the field, and technical common sense is divided into known technical common sense and commonly used technical common sense. And the technical scheme of the prior art, identify the difference between technical characteristics and objective technical problems, and determine whether there is technical enlightenment.
Selective inventions can be divided into numerical selection inventions and type selection inventions. In the United States, the creative judgment of combinatorial inventions has gone through different stages, such as the proposal, support and opposition of the criterion of synergistic effect. The KSR case ultimately supports the criterion of synergistic effect. The criterion of synergetic effect is only a necessary condition for the creativity of combinatorial inventions, and the creation of combinatorial inventions. The judgment of creation should be based on the basic principles of creative judgement.
Auxiliary judgment factors include business success, long-standing but unmet needs, unexpected technical effects, and failure of others. In the United States, auxiliary judgment factors are included in the Graham element and must be considered in creative judgment. There is no essential difference between American and American regulations in practice. In practice, attention should be paid to examining the causal relationship between auxiliary judgments and creativity.
This study shows that, no matter how different the systems appear, the practices in practice are surprisingly similar and basically in line with economic rationality. In order to promote the objectivity, stability and unity of creative judgment, this paper puts forward some suggestions.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D971.2;D95;D923.42
本文编号：2250655
[Abstract]:The empirical analysis of patent administrative cases in China shows that creative judgment is the most important and difficult point in patent administrative cases, but there is still no systematic theoretical and practical research in China. The article is divided into two parts as a whole. Chapters 1 to 4 are collectively called theory chapters, mainly discussing the basic theories involved in the judgment of patent creativity. Chapters 5 to 8 are collectively called practice chapters, mainly discussing the practical problems of creative judgment. Methods of economic analysis.
Creativity has long been a patent condition created by American judicial precedents. Creative conditions have undergone the criteria of "invention", "creative genius", "spark of creative genius", "non-obvious". Case law shows confusion and uncertainty. The establishment of the Federal Circuit Court of Appeals and the system of Article 103 of the United States Patent Law The non-obviousness criterion has been established and unified, and the Graham and KSR cases have developed it concretely. The coordination of substantive rules in European and international patent law has promoted the unification of the creative system. The comparative study and empirical analysis show that the creative conditions in our country do not require "significant progress". The comparative study shows that patent creativity in various countries is not necessary. A large number of legal transplants have appeared in the system and practice level.
The situation in the United States shows that objectification is the most difficult problem faced by creative judgment, and the basic reason for the overflowing of subjective judgment is the decentralization of judgment afterwards. The most effective way to promote the objectification of creative judgment is to restrict the concrete judgment rules and centralize and homogenize the judgment subjects.
Economic analysis shows that the best level of creativity is the point where marginal social costs and marginal social benefits are equal, but creativity is difficult to quantify, so economic analysis is difficult to provide operational tools. In response to criticism from all walks of life, the Supreme Court of the United States raised the criteria for creative judgment in the KSR case. Creative judgment is qualitative rather than quantitative analysis, so it is difficult to distinguish the difference between inventions and utility models in creative height in practice.
Creative judgment should abide by three basic principles. Creative judgment should be coordinated with patent remedy, which is called the principle of mutual coordination. Creative judgment should be based on the overall evaluation of the technical scheme limited by the claim, which is called the principle of overall evaluation. Technical effect is regarded as a whole. This is called the principle of comprehensive evaluation.
Patent creative judgment is a matter of law rather than fact. In the administrative procedure of creative judgment, the Patent Re-examination Board shall strictly abide by the principles of hearing and requesting which embody the principle of fairness. In the judicial procedure, the people's court can only examine the legality of specific administrative acts, not exceed the Patent Re-examination Board. The scope of the trial can not be declared invalid directly, but the entity of the patent should be judged. The nature of patent authorization and patent confirmation are different, and the burden of proof and the standard of proof should be different.
Knowledgeable common sense includes the technical common sense and daily life experience of the technical personnel in the field, and technical common sense is divided into known technical common sense and commonly used technical common sense. And the technical scheme of the prior art, identify the difference between technical characteristics and objective technical problems, and determine whether there is technical enlightenment.
Selective inventions can be divided into numerical selection inventions and type selection inventions. In the United States, the creative judgment of combinatorial inventions has gone through different stages, such as the proposal, support and opposition of the criterion of synergistic effect. The KSR case ultimately supports the criterion of synergistic effect. The criterion of synergetic effect is only a necessary condition for the creativity of combinatorial inventions, and the creation of combinatorial inventions. The judgment of creation should be based on the basic principles of creative judgement.
Auxiliary judgment factors include business success, long-standing but unmet needs, unexpected technical effects, and failure of others. In the United States, auxiliary judgment factors are included in the Graham element and must be considered in creative judgment. There is no essential difference between American and American regulations in practice. In practice, attention should be paid to examining the causal relationship between auxiliary judgments and creativity.
This study shows that, no matter how different the systems appear, the practices in practice are surprisingly similar and basically in line with economic rationality. In order to promote the objectivity, stability and unity of creative judgment, this paper puts forward some suggestions.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D971.2;D95;D923.42
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