"I can't figure out how this works? Okay, then I'll remind you one more sentence - in fact, the second trial is really easier to fool than the first trial. ”

Feng Jianxiong took a sip of Moutai and said something that made Professor Liu feel quite unreasonable.

"I want to hear about it. Professor Liu's demeanor was as solemn as ever.

"You are also an insider, so I won't say much about common sense. As you know, last year, the number of new patents examined by the State Intellectual Property Administration was more than 400,000, and counting the number of patents that had been precipitated in previous years and had not yet expired, there must be more than 2 million patents in total.

The category of 'prior art' includes not only the currently published patents, but also the latest achievements published in academic journals and academic conferences in various countries. All of them add up, and there are tens of millions of technologies in total......"

"Although the State Intellectual Property Administration is divided into eight major departments in accordance with international practice, there are hundreds of major categories, thousands of sub-categories, and thousands of groups below. However, with the technological explosion of today's era, there are still tens of thousands of cutting-edge technologies under each sub-category......"

"When a new invention patent application is filed, how can the examiner judge whether the technology is novel and inventive, and how can it be compared with the prior art?

For example, even if what I applied for today is just a 'smart drying rack that can automatically collect clothes when it rains', I dare to say that there are still hundreds or thousands of similar technical documents that meet the search conditions of this keyword! This is all common sense, and you know it.

In this case, if the examiner of the first instance has to exhaust the thousands of prior art documents and compare them with the technical principles of the new application to determine the novelty. Even the permutations and combinations of these thousands of prior art to determine the inventiveness of the new application - that is over, it is estimated that one examiner can only examine a few invention patents a year.

Not to mention that the current 800 examiners of the State Intellectual Property Administration are not enough, even if you hire 100,000 examiners, you can't complete so much work!

Therefore, it is well known that examiners do not exhaust all possibilities when rejecting an invention application, and they adopt a 'one-vote veto system' – that is, application file A is sent in, and I search and find that there are 1,000 prior art that are similar to this application.

Then I use my own estimate of the 1, 2, and 3 comparison documents that are most likely to reject the new application, and compare them with the new application to see if I can successfully reject them. If 1, 2, and 3 are enough, then 4, 5, and 6 all the way up to Document 999, I don't need to read it, which saves a lot of time. Directly issue the first "Notice of Office Action" and tell the applicant: according to 1, 2, 3, it is enough to prove that your invention is not innovative enough, get out!

Then, the applicant will amend and state it one at a time, and after the amendment, it will often limit the scope of his claim for protection, or make other adjustments, so that his application documents will appear to meet the comparison with 1, 2 and 3. However, at this time, the examiner will not give up, and he will continue to compare 4, 5, and 6 with the application documents, and if 4, 5, and 6 are enough to reject them, he will issue a notice again and tell the other party that there is no play......

If this is done many times, until finally no chance to amend the application, a ruling of "rejection of the application" is issued - and then if the parties are not satisfied again, it is the 'second instance' procedure that we mentioned earlier, where there are differences between the old and new interpretations. ”

"I know all this common sense, and then?" Although Professor Liu still listened carefully, he didn't find any dry goods, so he could only be patient, lest he miss something.

Feng Jianxiong stretched out two fingers and gestured, and his tone was more solemn: "Didn't you find a problem here? The examiner of the first instance has the legal obligation to 'comprehensively and adequately search' the prior art."

In other words, after he rejects the application with 1, 2 and 3, even if the party has changed it and meets 1, 2 and 3, the examiner can continue to use 4, 5 and 6 to refute it, and if it is corrected and then meet the requirements, it can still take 7, 8 and 9...... As long as the party changes it once, the examiner is obliged to find out again whether it is possible to reject the application on the basis of the modification and other closest to the prior art.

In fact, the examiner of the second instance does not have the obligation to 'comprehensively and adequately search' the prior art, or in other words, it is legally ambiguous, and it is impossible to do so, in fact, and objectively and technically.

Therefore, suppose that today's application A is rejected by the examiner of the first instance with a combination of 7, 8 and 9 prior art, and then the party is not satisfied, and then goes to the reexamination board for reconsideration of the second instance, and the reexamination board asks him to change it, and he does change the document to conform to the originality of 7, 8 and 9 - what will happen at this time? That is, according to the new interpretation, the reexamination board finds that the application meets the requirements of 7, 8 and 9 for originality, and can directly change the judgment and grant the patent!

What about the old interpretation? The old one could not directly grant a patent, and could only be 'remanded for retrial.'" And once the case is remanded for re-examination, and the examiner of the first instance finds that the applicant has changed the documents to meet the requirements of 7, 8, and 9, then he can continue to take 10, 11, and 12 to the end, and the children and grandchildren will be endless—at this time, do you still think that the difficulty of passing an invention in the first-instance procedure is the same as in the second-instance procedure?"

"Shhh

Feng Jianxiong said this, and Liu Yuanming's vague and vague thought in his heart that "if the second instance has the right to be directly authorized, it seems that it is really easier than the first trial", can be regarded as suddenly enlightened and cleared the clouds.

However, that's not all.

Although he knew the conclusion, Professor Liu found that he only knew it but did not know why.

"I had a vague idea of the possibility, but ...... Why is this so? I can't even figure out the jurisprudence behind this...... Why don't the examiners of the second instance try their best to find 'other prior art that is more likely to be the closest to the prior art in the applicant's prior art after the applicant's modifications?' Why is it that the examiners of the second instance are actually inferior to the examiners of the first instance in finding the prior art?"

Feng Jianxiong glanced at Liu Yuanming, took another bite of buffalo meat, and reminded in a playful tone: "This question seems to be just an explanation at the level of jurisprudence, and it seems to have nothing to do with making money." If you just want to make money with my strategy, you should be more concerned about the practical aspects of the operation at the moment. ”

"Please be sure to teach me! I know that I don't need to know the 'why' behind this! But if you don't tell me, I won't be able to sleep! Please respect my dignity as a scholar!" Liu Yuanming suddenly raised his voice and bowed as seriously as a Fuso person.

That posture was really as pious as that of the Fuso ascetics when they sought enlightenment.

Alas, you only need to memorize the art to make money, so what are you going to do?

Although Feng Jianxiong felt that it was a little unnecessary, for the sake of the other party's sincerity, let's waste some more time to explain.

Feng Jianxiong: "Actually, it's very simple, Professor Liu, think about it. How many judges does the provincial high court of a province have?"

Liu Yuanming: "This is not necessarily, the average is three or four hundred." ”

Feng Jianxiong: "How many judges can there be in the intermediate court of that prefecture-level city?"

Liu Yuanming: "Count him two or three hundred." ”

Feng Jianxiong: "So, how many judges are there in the Intermediate People's Court of all prefecture-level cities in a province?"

Liu Yuanming calculated for a little two or three seconds: "It depends on how much fuel is saved in a city! I roughly calculated that he packed it up, a total of 5,000!"

Feng Jianxiong spread his hands: "Isn't that right-so, in the judicial system, the manpower of the second-instance court is more than ten or twenty times worse than the total manpower of all the lower courts corresponding to him."

In the CNIPA, the same situation is the case - the review committee is specialized in solving difficult and miscellaneous diseases, and the scale of its establishment is equivalent to that of the High Court. The examiner of the first instance is equivalent to the intermediate court at the grassroots level. The number of first-instance examiners is about 20 times that of the second-instance examiners of the Reexamination Committee.

In fact, after the CNIPA has subdivided its personnel into eight departments, several hundred categories, and several thousand subcategories, and groups, there may only be two or three people in each specific technical direction.

Because of the strict division of labor in modern science and technology, even an examiner in the field of biopharmaceuticals who specializes in examining patents for certain types of compounds can be transferred to another very similar field to review the patent novelty of other types of pharmaceutical compounds.

However, the number of manpower of the reexamination committee is only one-twentieth of that of the first instance, which is doomed, and the reexamination committee can no longer even 'equip each of the most subdivided technical fields with a knowledgeable technical expert to judge'. They can only wear multiple hats, and one examiner knows several similar categories - and this is doomed, their degree of professionalism in science and technology is not as meticulous as that of the examiner of the first instance, and they can only know the general situation and do not seek to understand it.

With the technological explosion rate of hundreds of thousands or millions of new patents in science and technology every year, do you still expect this kind of 'generalist' to grasp the most cutting-edge science and technology in several fields in detail?

Therefore, 'exhausting all prior art that may affect the new invention of the new application' is something that only examiners have sufficient professionalism to do. The second-instance examiner is really powerless, because this kind of requirement is likely to exceed the physiological limit of human intelligence. ”

Feng Jianxiong explained so thoroughly, and Professor Liu was completely clear.

"That's how it is...... How come I never figured it out!"

Liu Yuanming looked up at Feng Jianxiong with horror in his eyes.

Then he seemed to be a little unwilling to pull the blame to alleviate the frustration caused by his IQ being crushed:

"But...... I haven't figured out the most fundamental principle behind this, so that's it. Why did so many top experts from the Supreme People's Court's Legal Interpretation Office not think of such possibilities and risks when they discussed and came up with this draft interpretation for several months?

Liu Yuanming's words were obviously dragging his back, wanting to make his heart feel better.

In that way, he could finally comfort himself: Although I didn't expect it, didn't the brick family of the Supreme People's Court Legal Interpretation Office also think of it! I'm not too mentally retarded!

Feng Jianxiong took out a cigar, cut it with scissors, and lit it with a sulfur blowtorch.

Then he took a deep breath, spit out clouds and fog for a few seconds, and put on a compassionate expression: "I can guess why the Legal Interpretation Office also went blind collectively and made this mistake." ”

"Why, please teach me!" Liu Yuanming bowed deeply again, obviously his eagerness to do learning was ignited, and he was already ashamed to ask.

In terms of academic morality, Liu Yuanming is still a good person, at least he is sincere in learning.

Feng Jianxiong: "I think so: the Supreme People's Court's Legal Interpretation Office, who are the people recruited in large quantities? You know, they are all Juris Doctors from Peking University, the National People's Congress, and the State Politics, and occasionally there are also master's degrees -- note that the master's degree that people want is a 'Master of Laws', not a 'Master of Laws', and you should know the difference between these two degrees. ”

Liu Yuanming nodded hurriedly: "Of course I know, we are all masters of law, and we are all from formal classes engaged in legal research." As for the 'Master of Laws', everyone thinks that it is inferior, and it is not about academics, but more about legal practice. LL.M. students are not allowed to take the LL.M. exam, and they are all for students who have completed a non-law major in the undergraduate program......

Therefore, many people who are halfway out of their homes to study law, in order to reduce the difficulty of competition when they are admitted to graduate school, will take the LLM instead of the LLM. In this way, the competition of a large number of law undergraduates can be avoided, and the intensity of competition and admission ratio can be reduced. ”

Feng Jianxiong smiled and nodded: "That's right, that's it-so, when the Supreme People's Court's Legal Interpretation Office recruited a large number of doctors and masters in law, it actually implied a subtext - that is, many of the people they recruited, even if they eventually grew into experts, they are also professionals who study law as undergraduates, master's students still study law, and doctors still study law." This kind of person has only studied the Fa in his life, and has not studied other majors......"

Liu Yuanming seemed to realize something, but he still subconsciously asked: "Then what about ......?"

Feng Jianxiong: "But if you think about it, what are the examiners of the CNIPA? What kind of people are required to take the 'Patent Agent Qualification Examination' prescribed by law?"

Liu Yuanming replied: "Of course, the special generation examination requires those who are undergraduate students majoring in science and engineering to take the exam. ”

Feng Jianxiong clapped his hands: "Isn't this the end - although the special generation examination is all about law, it does not allow liberal arts students, especially law students, to take the exam." You must study science and engineering when you are studying, but you also study law, and such a cross-circle comprehensive talent can be examined.

Why does the national law stipulate this? It is because modern science and technology are developing too fast! The explosion of technology is too violent! The imagination of a pure liberal arts student is simply not enough to imagine how detailed the current science and technology have been!

Therefore, experts who are pure liberal arts students will take it for granted that 'an examiner of the reexamination committee should be able to exhaust all the prior art in the field and be super knowledgeable about all relevant searches' - this thinking is just like a department manager of a liberal arts student, who naturally thinks that 'programmers should know how to solve all computer, network-related technical problems', is a reason.

But what about the truth of the facts? To put it bluntly, how detailed is modern science and technology, how difficult is it to find the most cutting-edge technology, and pure liberal arts students know a chicken?

Therefore, the Supreme People's Court wants to take advantage of the opportunity to interpret the law this time to cross the line and gain more authority, but failure is doomed - the Supreme People's Court is all experts with liberal arts doctors who purely study law, and the State Intellectual Property Bureau is all experts who are science students and are also experts in law.

Isn't it too much to take it for granted that pure liberal arts experts want to go to a field where they 'judge technological innovation' and give advice on the specific ways of doing things for science students, and think that this kind of criticism can help you save resources and improve your work efficiency?"