Publicity caused by the hottest production and man

All inventions and creations protected by the public

patent law caused by production and manufacturing should be suitable for industrial practical application. For inventions and utility models, they should be practical, which may produce deflection, that is, they should be able to be manufactured or used in industry, and can produce positive effects; For appearance design, it should be able to be applied to industry and form mass production. Therefore, for any invention and creation that can be protected by the patent law, the designer may have to carry out manufacturing and processing to realize its industrialization. In addition, the completion of some inventions and creations needs continuous improvement and perfection. In this process, repeated manufacturing and testing are inevitable. Will these behaviors lead to the disclosure of a technology (or design)? The following will be illustrated by a case

case

on December 7, 1998, the Patent Reexamination Board made the examination decision of No. 1208 request for invalidation, involving No. utility model patent with the application date of December 20, 1989 and the authorized announcement on August 15, 1990 and the name of "plastic expansion nut". During the trial of the patent invalidation request, the patentee and the invalidation applicant submitted 14 evidences and 8 attachments, involving a total of three controversial facts related to domestic public use, of which the controversial fact 2 involved Shaoyang tool group company (i.e. the claimant) at the end of 1988, that is, before the application date of the disputed patent, began to publicly manufacture plastic expansion nuts that are the same as the disputed patent. The evidence related to the disputed facts includes: evidence 2, 3, 4, 5, 11 provided by the petitioner, Annexes 1, 2, 7 provided by the patentee, Among them:

evidence 2  certificate issued by Hunan Machinery Import and Export Corporation on December 20, 1994 and six samples of plastic expansion nuts  evidence 3  certificate issued by German GB company on November 23, 1994  evidence 4  certificate issued by Hunan Machinery Import and Export Group Co., Ltd. on November 10, 1994  proof 5  drawings of plastic expansion bolts of Shaoyang tool factory

evidence 11  Lu Xiaorong's investigation record made on November 19, 1993

Annex 1  certificate issued by Shaoyang foreign trade chemical and medical insurance machinery products company on May 18, 1995

Annex 2  the joint venture agreement on expansion screws signed by the patentee and Shaoyang foreign trade chemical and medical insurance machinery products company

Annex 7  documents of Hunan second light industry bureau

the petitioner believes that evidence 2, 3, 4, 5 and 11 can prove that the petitioner assigned by Hunan Machinery Import and Export Corporation and Shaoyang hardware factory in 1988 processed plastic expansion nuts based on samples and drawings provided by foreign investors. The drawing of evidence 5 shows that the structure of the processed plastic expansion nut is the same as that of the disputed patent. Hunan Machinery Import and Export Group Co., Ltd. stamped on the drawing to prove that "this drawing was confirmed by our company to be correct with the samples from foreign investors in 1988 and agreed to be produced by Shaoyang tool factory"

the patentee proves with Annexes 1, 2 and 7 that the claimant did not produce plastic expansion nuts before 1992. In addition, the drawing of evidence 5 was drawn after 1992 instead of 1988, and the Hunan Machinery Import and Export Group Co., Ltd. stamped on the drawing is an investment stakeholder

for this controversial fact, the collegiate panel believes that production and manufacturing in the sense of domestic public use refers to public production and manufacturing, that is, the technical information about the whole process of production and manufacturing is in an open state that can be accessed by non-specific people. Generally speaking, according to business habits, when manufacturing new products, enterprises will not open the technical information of the new products to the public or competitors in the same industry in order to maximize their market share and obtain economic benefits. This is a situation of tacit confidentiality for their own interests. If the claimant claims that the claimant manufactured plastic expansion nuts in public in 1988, he should bear the burden of proof, but there is no evidence of public manufacturing in the current evidence. Therefore, even if we do not consider whether the evidences 2, 3, 4, 5, 11 of the petitioner and Annexes 1, 2 and 7 of the patentee are objective and true, the above disputed facts - Shaoyang tool group company has begun to publicly manufacture plastic expansion nuts that are the same as the patent in this case at the end of 1988, the evidence is still insufficient and cannot be determined

case analysis

manufacturing, like use, sales, import and other behaviors, is a way that may constitute the use and disclosure of relevant technologies (or designs). However, acts such as "manufacturing", "use" or "sales" do not necessarily lead to the disclosure of relevant technologies (or designs), and the determination of disclosure depends on whether the above-mentioned acts lead to the status that any one in the public can know if he wants to know about the relevant technical solutions. This is clearly stipulated in Chapter 3 of Part II and Chapter 1 of Part IV of the review guidelines. Here we may quote again that the test piece in part IV of the review guide should bear greater external forces. Chapter 1, 12.2. Colormatrixtm lactra SX is the only all photoresist white additive in the market that meets China's latest food certification standard (GB). Section 5 stipulates that "the ways of using it publicly include the manufacturing, use, sale, import, exchange, gift, demonstration, exhibition and other ways that enable the public to know its technical (or design) content", According to the above provisions, the specific disclosure of the use of manufacturing methods refers to the manufacturing that enables the public to know the content of its technology (or design), that is, the relevant technical information of production and manufacturing is in an open state that the public (non-specific people) can access, and anyone in the public who wants to know the relevant technology can know it through the production and manufacturing process. However, according to business habits, the production activities of an enterprise usually belong to the internal behavior of the enterprise, and people outside the enterprise generally can't understand the production activities inside the enterprise at will. Therefore, the fact that a product is produced by an enterprise usually does not mean that the product has been known to the public, unless there is evidence that the production process is public. The above invalid review decision No. 1208 just illustrates this problem. Under the premise of this determination, it can be further clarified that the enterprises that produce patented products or use the patented method of the influence of humidity on nylon materials before the date of patent application, whether the patentee himself or other enterprises, as long as there is no other evidence to further prove that this activity is public, or known to the public through sales and other means, It cannot be proved that the technical content involved is disclosed only based on the fact of production

of course, if there is evidence to prove that the manufacturing behavior of the enterprise is public, the relevant technical information of production and manufacturing is in an open state that the public (non-specific people) can access, and anyone in the public who wants to know about the relevant technology can know it through the production and manufacturing process, then the manufacturing is a public behavior, and it can be recognized that the relevant technical information is public

in view of the above case, there may be some questions: the petitioner has begun to produce the same product as the product required to be protected by the patent before the date of patent application. If this situation cannot make the patent lose novelty and the patent right remains valid, isn't it unfair to the petitioner? This problem should be discussed in the following two cases. In the first case, the applicant has independently developed and produced the product before the date of the patent application. At this time, there may be the problem of "right of first use". According to Article 63 of the patent law, "those who have manufactured the same product, used the same method, or made necessary preparations for manufacturing and use before the date of patent application, and continue to manufacture and use only within the original scope", "shall not be deemed to infringe the patent right". According to the above provisions, if the petitioner of this case independently developed and produced the same product before the date of the patent application, but did not apply for a patent; The patentee independently developed the patented product and applied for a patent. At this time, the manufacturing behavior of the applicant before the application date cannot make the patent lose novelty, and the patentee cannot restrict the applicant to continue to manufacture the same product as its patent in the original scale. In the second case, if there is a certain cooperative relationship between the petitioner and the patentee in the development of the patented technology, at this time, there may be a dispute over the ownership of the patent between the petitioner and the patentee, and the parties should go to the relevant court or intellectual property management authority to solve the ownership of the patent. (end)