[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

　　 [background]

　　LékuéCorporate action Criteria company, Claiming that a collapsible colander and a collapsible steamer infringed its patent rights. LékuéThe company is the licensee of two European patents, The subject matter of the European patent claim at issue is foldable filters and containers used for cooking, The details are shown in the following figure:

　　Criteria The company countersued, It holds that the disputed patent does not possess novelty and creativity, Request that the patent be invalidated. The Spanish court of first instance ruled that the patent was invalid, The court of second instance affirmed the decision of the first instance.

　　 [conclusion]

　　The case begins with a review of an earlier decision by Spain's Supreme Court in a similar dispute, Determine whether a patent is creative, The effective and appropriate method is "analysis, problem, solution" , Or it's called the three-step method: The first step, Identify the closest existing technology; The second step, Identify technical problems to solve; The third step, Based on the closest available technology and the technical problem to be solved, Determine whether the invention is obvious to a professional.

　　Creative evaluation (namely, Based on existing technology and technical problems to be solved, Evaluate whether the solution to invention disclosure is obvious) Shall be based on or with "General technical personnel in the field (average person skilled in theart) " As a reference point. so-called "General technical personnel in the field" , It's a hypothetical "Professional personnel" , Having the general knowledge and ability of an ordinary technician in the technical field, All prior technologies in the technical field of the invention before the relevant date is known, especially "Search report" Listed documents. Instead of providing solutions, He's more of an expert on technical issues. The professional is not creative, You can't do anything creative (Not an inventor) , Knowing everything about current technology prior to the filing date. In addition, General technical personnel in the field, It should not be confused with technical experts who provide information in the process of judging the creativity of a patent. The technologist's role is to provide "Expert in the field" viewpoint. Technical experts do not need to be ordinary technicians in their field, Can explain the "General technical personnel in the field" How do you consider the disclosure of a patent and the state of the art prior to the patent's priority date. The key here is not the technical expert but the general technical person in the field, But he's offering what do ordinary technicians in the field think about in this situation. The point is, According to the content of the invention, Technical experts are in a position to make such assessments.

　　About the nearest existing technology, The Spanish Patent Office "Guidelines for examining patent applications" And the European Patent Office "Review guide" Relevant provisions of, And the relevant findings of the European Patent Office Appeal Board. Judgment point, To evaluate patent creativity, The closest to the prior art should be understood as, For technical personnel in the field who have a thorough knowledge of the technology available prior to priority, Such a document exists, It belongs to the same or closely related technical field as the invention claiming protection, The disclosed theme is conceived for the same purpose; Has the most common technical characteristics, namely, You only need to make minimal changes, It can solve the same or similar technical problems.

　　The ruling went on to state that, Because they belong to the same field, Have the same intended purpose and function, If the content of the patent under review could be fully predicted from the patent document cited as the closest to prior art, It should be found that the patent claims examined lack creativity. but, When judging the creativity of a patent, This prior art is allowed to be judged in conjunction with other known techniques. It is different from the case of judging the novelty of a patent, For the lack of creativity, Both legal opinion and prior jurisprudence allow for the incorporation of different prior art.

　　For that matter, Intermediate appellate courts refer to prior precedents, To determine whether an invention is obvious or not, Professionals in the field cannot take images when judging novelty, The practice of separating relevant literature or prior art, They can combine different documents as a whole, Determine if enough information exists, So that he could not use the information disclosed by the invention under review, You can come to the same technical conclusion. but, The combination should be obvious to those skilled in the field.

　　Based on the above considerations, The judgment of the second instance holds that, The independent and subordinate claims of the two patents at issue in this case lack creativity, Therefore, the judgment of the first instance on the invalidation of the disputed patent is maintained.

　　 [comment]

　　Court decision, Sometimes in addition to the specific case dispute content to deal with, There will also be a thorough review of prior precedents on relevant issues. When it comes to complex issues such as invalidating patents for lack of creativity, That's what the court did, No doubt it has great guiding significance for us.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights