According to the Patent Law, technical patent applications are divided into two categories: "invention" and "utility model", and the gold content of the invention is much higher, and the examination is much stricter).

If you write it all out, you officials who don't study the Fa will definitely be annoyed and your brains will explode.

So, to summarize it roughly in imprecise, but understandable terms, it looks like this: (Don't look at it as a law, I did it for the sake of the structure.) If you want to study the law, please go directly to the textbook on the interpretation of the law. ）

First, the party concerned submits an invention application, and then the CNIPA first takes a cursory look at whether it falls within the scope of acceptance of the "invention" in accordance with the law, and if there is no problem with the scope of acceptance, it will issue a Notice of Acceptance.

Then, the preliminary examination stage is the same as the examination of the "utility model", that is, the examiner does not conduct a "full search".

The so-called "comprehensive search" is to find other relevant technologies in the national patent database and all the prior art documents that can be found on the market to determine whether the patented technology you are applying for is novel and inventive.

The preliminary examination does not conduct a comprehensive search, which means that as long as your technical arts and sciences are smooth, technically operable, and achieve the effect you described, the preliminary examination will be considered to be passed. As for whether others are like you, the first instance doesn't care. (unless it is clearly state-of-the-art)

After another three months, you can apply for "substantive examination" in advance. (Alternatively, you can skip the application and use a one-and-a-half-year "regret period", after which the contents of the invention will be disclosed to the public, and the substantive examination must be entered three years from the filing date at the latest.) The specific principle will not be explained, and tens of thousands of words can be written if you really want to explain this point alone).

This is where the "full search" comes in.

If the examiner finds that your technology is indeed very novel and inventive, and there is indeed no precedent in the market, then you can directly pass the "substantive examination" and issue a patent certificate.

But in reality, this is unlikely.

Because in this day and age, the amount of innovation in every invention is actually very small.

In other words, only a little improvement over the existing technology will lead to a rush to register a new invention.

This leads to the problem: most of the time the examiner will think that your technology is not really new.

At this time, the "Distinguished Examiner" will issue a Notice of Office Action.

Ask the applicant to revise their application documents, or make a written defense argument stating why you think you are innovative.

This kind of notice/amendment/defense game has to last at least two rounds, sometimes three.

After three rounds of defense revisions, the examiner still does not approve you, and then you can issue the decision document of "Rejection of the Application".

Of course, the parties can still express their dissatisfaction with the "rejection" at this time.

It's just that it's just three things, and if you don't accept it this time, it's useless to find the front-line examiners of the CNIPA.

Article 41 of the Patent Law, the Detailed Rules for the Implementation of the Patent Law and the Guidelines for Patent Examination, at this time, the remedy provided to the applicant is to seek the "Patent Reexamination Board", referred to as the "Reexamination Board".

According to the old law, after finding the "review committee" and "petitioning" again. If the reexamination board feels that the applicant is still unreasonable (that is, it thinks that the examiner of the first instance is reasonable), it will directly issue the "Notice of Review to Maintain the Original Rejection Decision".

This situation is the easiest, and there is nothing to worry about.

But what is complicated is another situation, that is, the review committee feels that "the rejection of the first instance is reasonable, but you will give you another chance to change it, and you can still rescue it".

At this time, the reexamination board will also issue a "Notice of Reexamination", but the content is for the applicant to make further changes.

If the applicant changes this time very aggressively, the people of the reexamination board will think that it is perfect after the change - at this point, the new law and the new interpretation, and the differences with the old law and the old interpretation will come out.

Originally, the provisions of the old interpretation were read by the review committee, even if they felt "very satisfied and happy", they could not just let it go.

This is because the Reexamination Board is only an organ for administrative reconsideration, not a standing examination organ. It shouldn't have to worry about that.

The correct approach of the reexamination committee at this moment is to "remand for retrial".

In other words, "although I think I can", I don't have the right to "just say yes". I'm going to ask the person who said "I don't think I can't" the first time to watch it again, and let the person who said "I don't think it work" change his words and say "I think it's okay."

Now, according to the new interpretation, it has become the reexamination committee's "I think it's okay", and then it directly changes the judgment to "I think it's okay".

It can be said that the gap between the old and new interpretations, rules, and guidelines is very subtle.

Even insiders can't pay attention to the specific details of the division of labor between several offices and constituent departments within the CNIPA and how many legal risks can be generated.

Professor Liu, one of the top 50 experts and scholars in the field of intellectual property law in China, has not seen it, which is a clear proof of the concealment of this point.

And when the Supreme People's Court issued this explanation, it actually had good intentions - they were doing so to save some countries' administrative review resources and improve administrative efficiency.

Perhaps the experts of the Legal Interpretation Office slapped their heads and thought, "Since the person concerned is reasonable, why should he take another move and remand it for a new trial? Wouldn't it be more economical for the state to directly change the judgment to him with the right to do so?"

And now it seems that only Feng Jianxiong can see the shady behind this.

……

So, after finding this point, how can you use it and make money?

Feng Jianxiong gave an example for Professor Liu: "Can't see the exploits behind this? Then let me put it another way of saying it is easy to understand - although you are engaged in intellectual property law, you should also understand some of the civil procedure law and criminal procedure law, right?"

Professor Liu promised in response: "That's necessary! How can you not understand the three basic procedural laws! You also underestimate me!"

Feng Jianxiong raised his hand and signaled the other party to be calm: "Don't worry, then I'll give you an example." I believe you all know the 'two-instance final adjudication system' stipulated in the Civil Procedure Law, right?

It should also be known that in the two-instance final adjudication system, the court of second instance can only 'directly change the judgment of the second instance' when it encounters a major category of situations such as 'the facts are clearly determined, the evidence is conclusive and sufficient, and only the law is wrongly applied'.

And if the court of second instance finds that 'the facts of the first instance are unclear and the evidence is insufficient', then it is absolutely impossible to directly change the judgment, even if you collect new evidence, you must 'use the court of first instance to retry the case', right?"

Professor Liu nodded: "Of course I know this. ”

Feng Jianxiong also continued to ask with a pleasant face: "Then do you know why the law is so established, and what is the legal basis behind this?"

Professor Liu doesn't have to think about it: "Of course, it is to prevent one party from conducting evidence raids - everyone knows that the first instance is not the final conclusion, even if you lose, there is still a chance of appeal." The second instance is the final conclusion, and if you lose, you will basically be completely hopeless (not considering the procuratorate's protest and the court's ex officio retrial, those are not under the control of the original defendant).

Therefore, if the facts are unclear and the evidence is insufficient, the second-instance trial can directly change the final judgment, which will lead to a very terrible consequence: everyone will no longer bring out the most powerful evidence for themselves in the first instance, and would even rather lose the first instance because of this. And when it comes to the second trial, they will supplement the evidence that has been secretly hidden, carry out a sneak attack on the evidence, and get rid of the opponent in one fell swoop in this trial that covers the coffin.

Therefore, if the second-instance trial can directly change the judgment of a case with insufficient evidence, the foundation of the two-instance final adjudication system will be uprooted and rendered useless, and the first-instance trial will be completely abolished and become child's play, and no one will attach importance to the first-instance ......."

As Professor Liu spoke, he seemed to have realized something, and suddenly stopped his mouth, and his expression trembled.

His thinking seemed to jump back to the "Patent Law" directly, and he didn't bother to continue to talk about the Civil Procedure Law.

"You...... Are you saying that the 'ordinary examiner of the CNIPA' in the Patent Law is equivalent to the 'court of first instance' in civil litigation, and the 'reexamination committee' is equivalent to the 'court of second instance'? Originally, according to the old law, the reexamination committee of the 'second instance' had to 'remand for a new trial' if it found a problem, but now it can 'request the parties to make corrections and confirm that there are no problems, and then directly change the judgment and pass it'?

In this way, it will also lead to the same legal risk as in the Civil Procedure Law, that is, the evidence will not be fully displayed in the first instance, but the evidence will be raided in the second instance?......"

At first, Professor Liu became more and more excited, thinking that he had figured out Feng Jianxiong's strategy.

There was even a moment of unwillingness flashed in Professor Liu's mind:

Although this idea and strategy are very yin, with the master's own academic quality, it can still be figured out after thinking about it for half a year!

Just for such an idea, giving Feng Jianxiong more than 3 million a house is really a loss!

Thankfully, this complacency was fleeting.

Because Professor Liu soon found that this statement still does not make sense, it seems that there is a key point behind the chain that cannot be broken through.

Perhaps, there is more than one - after all, a wall-facing person can only know if there is a new wall behind this wall until he breaks through the wall in front of him.

“…… However, patent examination is in the nature of administrative examination and approval and administrative reconsideration, and how can it be the same as a civil lawsuit in which the two sides are confrontational and the judge is impartial?

This kind of approval is directly passed after any one time. It's not like a civil lawsuit, 'if you win the first instance, you won't win, and you may be overturned'.

If there is really evidence sufficient to lead to a trial, why should it be left until the 'second trial' of the review committee? If the first trial is directly presented, isn't it just the first trial? Why bother with this?

Do you think that the examiners of the first instance are stricter than the reexamination committee of the second instance, and they are more sad? Evidence of the same scale cannot pass the first instance and the second instance can be passed? It doesn't make sense......

Professor Liu muttered to himself for a long time, and finally gave up in frustration.

He had to admit that his IQ was really far from Feng Jianxiong.

Feng Jianxiong is "the first old yin beep in the heavens and the world, and the unparalleled one in the underworld".

It's better to wait for Feng Jianxiong to uncover the next layer of mystery for him.