On November 27th, the QBPC Patent and Innovation Committee held a seminar on patent creativity in judicial practice. The seminar was moderated by PIC Chair Frank Liu, and Lawyer ZHENG Bin was invited to deliver a presentation. More than 50 QBPC members were in attendance.
During the seminar, ZHENG discussed his latest findings on creative judgment in patent examination. He highlighted the challenges that creative judgment encounters in current patent examination practices, particularly the diminishing predictability of legal reviews. However, the Analysis of Patent Granting and Affirmation Trial Cases from 2014 to 2024 offered a chance to tackle these challenges. In the process of creative judgment, identifying the closest prior art was essential; however, there was no absolute right or wrong choice, and different selections could lead to different conclusions about creativity. A case from the Beijing Intellectual Property Court demonstrated that even with identical comparative documents, the selection of a different closest prior art could lead to a significantly different outcome. Moreover, the impracticality of a technical solution did not exclude it from being considered as the closest prior art. Additionally, technical bias and conflicting revelations were critical factors to be considered in evaluating creativity. Therefore, inventors had to clearly document any technical biases and articulate how they addressed these biases; otherwise, the creativity of the patent would unlikely be recognized.
In Q &A session, participants raised questions related to the challenges of integrating technologies, such as the integration boundary between technology and other fields, the tendentiousness of technology feedback and the relevance of technology fields, etc. The speakers gave detailed answers accordingly.