In patent affirmation litigation, patent creativity judgment is the most controversial issue between the two parties. In the judgment of creativity, how to determine whether there is reverse technical teaching or technical enlightenment in the prior art materials is the core issue that determines whether the prior art can be combined.
First-instance case number: (2015) Beijing Intellectual Property Court Administrative Judgement No. 2699
Second-instance case number: (2018) Beijing Intellectual Property Court Final Judgement No. 6295
Retrial case number: (2019) Supreme People’s Court Administrative Retrial No. 268
【The main takeaway of the trial】
When considering whether there is reverse technical teaching in existing technology, it should be based on the knowledge level and cognitive ability of those skilled in the art to analyze and judge from the overall existing technology. Even if a technical defect is recorded in the prior art, it is necessary to consider further whether the technical defect is related to the technical problem actually solved by the distinguishing technical feature and the determination of the technical enlightenment.
【Case Introduction】
Applicant for retrial (plaintiff in the first instance, the appellant in the second instance): Chongqing Lifan Automobile Sales Co., Ltd. (referred to as Lifan Company)
Respondent (defendant in the first instance, appellee in the second instance): China National Intellectual Property Administration
Third person in the first instance: Cao Guilan and others
The patentee applied for an invention patent named "Shark Fin Antenna" on January 23, 2007, and was authorized on May 23, 2012.
Applicant Lifan Company filed an invalidation request for the patent in question and declared the patent invalid on the basis that the claims of the patent in question are not creative. China National Intellectual Property Administration made an invalidation review decision for the patent, which maintained the validity of the patent.
The invalidation decision held that, compared with Evidence 1, this patent has three different technical features a, b, and c, and that the other comparative documents submitted by the requester disclose these three different technical features. But because Evidence 1 provides reverse teaching, it cannot be combined with other comparative documents to destroy the creativity of the patent in question.
The invalid decision determined, what leads to the application of the reverse teaching is the distinguishing technical feature c, "the radio receiving antenna is an AM/FM shared antenna". The invalid decision held that the technical problem actually solved by the three distinguishing features is to achieve a good antenna receiving device for receiving radio signals with fewer antennas, and the technical problem solved by the distinguishing feature c is not mentioned; Evidence 1 is to use AM antennas and FM antenna separately to solve the problem of an unsatisfactory received signal. Therefore, the technical means adopted by the two are deviated from each other, and thus Evidence 1 has reverse teaching. Therefore, although the distinguishing technical feature c is disclosed in the background art of Evidence 1 and other prior art, it cannot be combined with Evidence 1 due to the "reverse teaching", and therefore cannot destroy the creativity of this patent.
Lifan Company refused to accept the invalidation decision and filed an administrative lawsuit with the Beijing Intellectual Property Court. The Beijing Intellectual Property Court rejected the litigation request of Lifan Company in the first instance judgment. Lifan Company refused to accept the judgment of the first instance and filed an appeal to the Beijing Higher People's Court. The second instance judgment of the Beijing Higher People’s Court rejected the appeal and upheld the original judgment.
Lifan Company refused to accept the second instance judgment of the Beijing Higher People’s Court and applied to the Supreme People's Court for a retrial. The Supreme People's Court ruled for a retrial and issued a retrial judgment. The retrial judgment revoked the second instance judgment of the Beijing Higher People's Court and the first instance judgment of the Beijing Intellectual Property Court, and also revoked the invalidation review decision made by the China National Intellectual Property Administration and ordered the CNIPA to make a new invalidation review decision on the patents involved.
As the agent of the retrial applicant (Lifan Company), lawyers from Beijing UNITALEN ATTORNEYS AT LAW participated in the proceedings of this case.
【Typical meaning】
In patent affirmation litigation, patent creativity judgment is the most controversial issue between the two parties. In the judgment of creativity, how to determine whether there is reverse technical teaching or technical enlightenment in the prior art materials is the core issue that determines whether the prior art can be combined. However, the current Patent Examination Guidelines only stipulates the judgment rules of technical enlightenment in the prior art, and there is no clear stipulation on how to judge the reverse technical teaching, which has led to many disputes regarding the determination of the reverse technical teaching in practice. In this case, the Supreme People's Court adopted the precedent form of the retrial judgment and gave guidance on the judgment of reverse technical teaching.
The Supreme People’s Court believes that when judging whether the existing technology has technical enlightenment, it should be based on the knowledge level and cognitive ability of those skilled in the art to determine whether there is technical enlightenment for the technical problem to be solved by the claims from the existing technology as a whole. The reverse technical teaching is usually relative to technical enlightenment. When considering whether the existing technology has reverse technical enlightenment, the overall analysis and judgment of the existing technology should be based on the knowledge level and cognitive ability of those skilled in the art. The technical defects recorded in the prior art do not mean that technical enlightenment cannot necessarily be obtained from the prior art. It is necessary to determine whether the technical defect is related to the technical problem actually solved by the distinguishing technical feature according to the judgment logic of the technical enlightenment.
In addition, any technology has both strengths and defects. Therefore, when looking for enlightenment or reverse teaching in the prior art, it is necessary to analyze and judge whether there is corresponding technical enlightenment or reverse technical teaching based on the actual technical problem to be solved by distinguishing the technical characteristics, comprehensively considering relevant factors, and analyzing and judging whether the prior art as a whole has corresponding technical enlightenment or reverse technical teaching.
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