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近年来,对于专利复审阶段的审查范围,尤其是依职权审查专利申请文件中的“明显实质性缺陷”的范围,专利申请人与审查员之间在认识上存在较多分歧。由于《审查指南》对于复审阶段的“明显实质性缺陷”中的“明显”缺乏清楚的界定,导致审查员在依职权审查明显实质性缺陷时有较大的自由裁量余地,从而引起很多争议。在2013年新审结的一件专利行政诉讼案件中,北京市第一中极人民法院(以下简称“北京一中院”)和北京市高级人民法院(以下简称“北京高院”)认定专利复审委员会在复审阶段新引入的创造性理由不属于其依职权审查的“明显实质性缺陷”范围,分别在一审和二审两份判决书中对这一问题进行了阐释,并提出了较为具体的司法观点。
In recent years, there has been more disagreement between patent applicants and examiners on the scope of the review of the patent review stage, especially the examination of the scope of the “substantive defects” in the patent application documents. Due to the lack of a clear definition of “obvious ” in the “substantive defect” of the review phase in the Guide, the examiner has greater discretion in examining obvious substantive defects in terms of authority Cause a lot of controversy. Among the patent administrative litigation cases newly concluded in 2013, the First Beijing People’s Court of Beijing (hereinafter referred to as “Beijing No.1 Intermediate People’s Court”) and the Beijing Higher People’s Court (hereinafter referred to as the “Beijing High Court” ) Found that the newly introduced creative reasons of the Patent Reexamination Board during the review stage did not fall into the category of “obvious substantive defects” under its own authority and were examined in two verdicts of the first and second instance respectively and proposed More specific judicial view.