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公知常识这一概念在中国的专利法律、法规、行政规章中并没有清晰的定义。但是,公知常识在评价专利的创造性时起到了非常关键作用,因此在专利授权、确权的审查程序、无效程序、诉讼程序中常常成为争议的焦点。中国专利局、法院、学术界、实务界对公知常识的讨论一直比较多,本文对其进行了初步梳理,各方争议焦点主要集中在:(1)公知常识的概念及范围;(2)涉及公知常识的举证规则。事实上,对于公知常识举证规则的争议源于对效率和公平的取舍。从中国的实际情况出发,结合考虑当前的司法政策,本文对上述争议问题提出了相应的建议。本文还简单介绍了美国、欧洲、日本、韩国专利局对公知常识的相关规定。
The concept of common sense is not clearly defined in China’s patent laws, regulations and administrative rules. However, common sense has played a crucial role in evaluating the inventiveness of patents, and has often been the focus of controversy in the examination of patent grants, definitive censorship, invalidation proceedings, and proceedings. The discussion among the Chinese Patent Office, the courts, the academic circles and the practical circles has always been more and more common knowledge. This paper has done a preliminary analysis of the issues. The main focuses of the disputes are: (1) the concept and scope of common knowledge; (2) Common knowledge of the rules of evidence. In fact, the controversy over the proof of common sense comes from the choice between efficiency and fairness. Based on the actual situation in China and considering the current judicial policies, this article puts forward corresponding suggestions on the above controversial issues. This article also briefly introduces the relevant provisions of common knowledge in the United States, Europe, Japan and Korea Patent Office.