【The main takeaway of the trial】

Commonsense evidence usually refers to references that record basic technical knowledge in the field such as technical dictionaries, technical manuals and textbooks; it needs to specifically determine whether references other than technical dictionaries, technical manuals, and textbooks are common knowledge evidence with factors including the carrier form, content, characteristics, audiences, and spreading scope of the literature, etc.

【Case Introduction】

In the case of an administrative dispute over an invention patent application refusal and reexamination involving the appellant CNIPA, the appellee Jiangsu Targetpharma Biomedicine Laboratories Co., Ltd. (hereinafter referred to as Targetpharma Company) and Changzhou High-tech Research Institute of Nanjing University (hereinafter referred to as NJU Research Institute) , it involves the invention application titled "A variant of tumor-targeting TNF-related apoptosis-inducing ligand (TRAIL) and its application " with its application number 201110187700.2, (hereinafter referred to as this application).

Targetpharma Company and NJU Research Institute held that volume 8 of "Frontiers in Cancer Research" is neither a textbook nor a technical dictionary, it is only a comprehensive collection of the latest achievements in the cancer research field of the corresponding year, and it is not commonsense evidence.

The Reexamination Request Review Decision No. 116649 issued by the CNIPA (hereinafter referred to as the accused decision) regarded the volume 8 as commonsense evidence, which existed a mistake, so it filed a lawsuit with the Beijing Intellectual Property Court (hereinafter referred to as the court of first instance).

The court of first instance held that volume 8 of "Frontiers in Cancer Research" is just a journal on medical oncology research, and the CNIPA did not determine whether the specific technical knowledge documented in volume 8 of "Frontiers in Cancer Research" is commonsense, but directly used it as commonsense evidence, which existed errors.

The CNIPA refused to accept the judgment and appealed to the Supreme People’s Court, claiming that Volume 8 of "Frontiers in Cancer Research" is not a journal. It only has an ISBN book number instead of an ISSN number. The NGR-related technical knowledge involved in volume 8 of "Frontier Cancer Research" cited in the sued decision is "Frontier Cancer Research" No. 8 is commonsense that already known in the field instead of cutting-edge advancement.

The Supreme People's Court ruled on August 13, 2020 to dismiss the appeal and uphold the original judgment.

【Typical meaning】

The second instance of the Supreme People's Court held that, firstly, it is about commonsense and its proof method.

For one thing, the identification of commonsense in related technical fields directly determines the technical knowledge and cognitive abilities that ordinary technicians in the field should have, thus imposing an important influence on the judgment of inventive step.

Therefore, the identification of commonsense should be based on definiteness with support of sufficient evidence or reasons, and it should not be too arbitrary.

Generally speaking, about whether relevant technical knowledge is commonsense, in principle, it can be proved by commonsense evidence in technical fields such as technical dictionaries, technical manuals, textbooks, etc. In the case of that it is difficult to prove by commonsense such as technical dictionaries, technical manuals, textbooks, etc., it also can be fully proved through the mutual corroboration of multiple pieces of non-common knowledge evidence in the field, such as multiple patent documents, journals and magazines. However, this method of proof should be followed stricter certification standards.

Secondly, commonsense evidence refers to documents that record basic technical knowledge in the field, such as technical dictionaries, technical manuals, and textbooks. If there is no opposite evidence, the technical knowledge documented in technical dictionaries, technical manuals, and textbooks can be presumed to be commonsense.

For documents other than technical dictionaries, technical manuals, when judging that whether they are common-sense evidence recording basic technical knowledge in the field, textbooks, it needs to be specifically identified in consideration of carrier form, content and characteristics of the document, audience, and scope of spread.

For the other thing, the specific judgment on whether volume 8 of the "Frontiers in Cancer Research" involved is commonsense evidence.

First of all, in terms of carrier format, volume 8 of "Frontiers in Cancer Research" is a book.

The CIP of volume 8 of "Frontiers in Cancer Research" shows that its book number is ISBN978-7-81086-559-3. ISBN is the antonomasia of international standard book number, which has been used in China for many years, so it should be recognized as a book. The judgment of first instance determined that it belonged to a journal, which was lack of accuracy and should be corrected.

Secondly, in terms of content and characteristics, though volume 8 of "Frontiers in Cancer Research" is a book, it differs from a general textbook.

The preface of the book points out that it tries its best to introduce the latest developments of cancer research worldwide with the simplest language to colleagues and related researchers, featured by inclusiveness, advancement and focus debates, it has the characteristics of many documents including monographs, reviews, reviews, popular science readings, etc.

It indicates that the book is aimed at introducing the latest developments in cancer research around the world, rather than general technical knowledge in the field of cancer research, and is not involved in the common textbooks. In conclusion, in view of audience and scope of spread, it is difficult to identify that volume 8 of "Frontiers in Cancer Research" is a textbook.

The "Introduction" on the copyright page of the book records that "this book can be used as a reference book for related professional researchers, and can also be read and used by related personnel in universities and hospitals", which also indicates that it is not a textbook in ordinary meaning, but a research reference book for professionals.

In addition, there is no other evidence in this case indicating that the book has become a common reference book for researchers in related fields.

Combined with the above factors, it can be determined that while volume 8 of "Frontiers in Cancer Research" belongs to a book, it is not a textbook in general sense, which means it is insufficient to be recognized as commonsense evidence.

From The Intellectual Property Court of the Supreme People’s Court

August 16th, 2021