The essence of Article 26, Paragraph 3 of the Patent Law is that the description should be fully disclosed to ensure that those skilled in the art can realize at least part of the technical solutions in the claims. The essence of Article 26, Paragraph 4 of the Patent Law is that the scope of protection summarized in the claims should not be too broad, and all technical solutions therein should be supported by the description. In other words, the description should be fully disclosed to ensure that the field of Skilled persons can implement all technical solutions in the claims. One of the main issues in the judicial practice of the above two clauses is how to prove whether it is fully disclosed and whether it is supported, which mainly involves four aspects: first, whether the parties can submit additional evidence during the lawsuit. Second, who should bear the adverse consequences if the authenticity is unclear. Third, to what extent should it be proven whether it is fully disclosed and supported. Fourth, how the burden of proof is transferred between parties. Due to space limitations, this article plans to discuss the first two issues first, and then continue to discuss the last two issues in the next column. 1. Whether the parties can submit additional evidence during litigation. In administrative cases involving patent authorization and confirmation involving whether disclosure of the specification is sufficient and whether the claims are supported, whether the parties can submit additional evidence is a common issue in judicial practice. To analyze this issue, we must first emphasize that in our country, in principle, parties are not allowed to submit additional evidence in administrative proceedings. In administrative litigation, the People's Court mainly examines whether specific administrative actions are legal. Whether the Patent Reexamination Board's specific actions in authorization and confirmation cases are legal or not should be judged based on the state of the evidence when it made the review decision and invalidation decision. Therefore, in principle, parties are not allowed to submit additional evidence in patent authorization and confirmation cases. However, in order to ensure the legitimate rights and interests of the parties concerned, it is not absolutely impossible to submit additional evidence in administrative cases. Kong Xiangjun, President of the Intellectual Property Tribunal of the Supreme People's Court, believes that Article 59 of the Supreme People's Court's "Provisions on Several Issues Concerning Evidence in Administrative Litigation" establishes a conditional "dossier exclusivity" rule for the plaintiff to submit evidence, which provides the basis for the use of evidence in litigation. Theoretical basis for conditional admission of supplementary evidence. According to this theory, in the judicial practice of trademark authorization and confirmation cases, if the trademark application is rejected or the trademark is revoked by the Trademark Review and Adjudication Board, the trademark applicant or trademark owner has no other remedies, and the court can accept the decision of the trademark applicant or trademark owner. The person submits additional evidence in the lawsuit. Similarly, in the judicial practice of patent authorization and confirmation cases, if the patent application is rejected or the patent right is declared invalid, the patent applicant and patentee have no other remedy except litigation, so they should also conditionally litigate. Allow additional evidence. The person who determines whether a patent complies with paragraphs 3 and 4 of Article 26 of the Patent Law is a person skilled in the art. A person skilled in the art is a virtual "person", and neither the examiner nor the judge is a natural person skilled in the art. What conclusion a person skilled in the art will draw when faced with the evidence on record depends on the knowledge and ability of the person skilled in the art. The knowledge and abilities of those skilled in the field need to be determined through evidence in case of dispute between the parties. In patent grant and confirmation cases, it is very important to prove the knowledge and abilities of those skilled in the art through the evidence submitted so that the judge can truly make judgments from the standpoint of those skilled in the art. Therefore, parties should be conditionally allowed to submit evidence to prove the knowledge and ability of those skilled in the art. In administrative cases of authorization and confirmation, parties cannot submit additional evidence other than those used to prove the knowledge and abilities of those skilled in the field. The fundamental purpose of Article 26, paragraphs 3 and 4 of the Patent Law is to require patent applicants to fully disclose relevant technical information in patent application documents, so that those skilled in the art can realize what is claimed in the claims on the basis of the description. All technical solutions. Whether a patent applicant has fully disclosed relevant technical information shall be based on the patent application date. Patent applicants are not allowed to arbitrarily add technical information to the specification during the rejection review process, nor are patentees allowed to arbitrarily add technical information during the invalidation procedure. technical information in lieu of the requirement to fully disclose relevant technical information in the description before the filing date. Therefore, in the process of substantive examination, patent reexamination, patent invalidation and patent authorization and confirmation litigation, patent applicants and patentees cannot be allowed to supplement the specification by supplementing evidence that should have been recorded in the specification on the filing date. Technical information.

In other words, in the process of patent authorization and confirmation, the evidence submitted by the patent applicant or patentee cannot replace the role of the patent specification or make up for the defects in the specification. To sum up, in administrative litigation for patent authorization and confirmation that disputes whether disclosure of the specification is sufficient and whether the claims are supported, the following rules should be established for the parties to submit supplementary evidence: First, in cases of patent authorization administrative disputes, that is, rejection of patent applications In reexamination of administrative dispute cases, the Patent Reexamination Board cannot, in principle, submit additional evidence because it should ensure the legality of the administrative action before making an administrative decision. If the patent application is rejected, the patent applicant may submit additional evidence to prove the knowledge and ability of a person skilled in the art. The Patent Reexamination Board may submit counter-evidence to the evidence submitted by the patent applicant. Second, in patent confirmation administrative dispute cases, that is, patent invalidation administrative dispute cases, the invalidation requester cannot, in principle, submit additional evidence that was not reviewed during the invalidation request review process, because the invalidation requester can also resubmit an invalidation declaration based on new evidence. ask. In a patent confirmation case, if the patent right is declared invalid, the patentee can submit additional evidence to prove the knowledge and ability of those skilled in the art. The Patent Reexamination Board and the invalidation petitioner may submit counter-evidence against the evidence supplemented by the patentee. Third, in principle, patent applicants and patentees cannot submit additional experimental data that are not recorded in the specification. Unless the experimental data itself is used to prove the professional knowledge and ability of those skilled in the art, rather than making up for the shortcomings of insufficient disclosure in this patent specification. 2. Who should bear the adverse consequences if the authenticity is unknown? In the trial practice of patent authorization and confirmation, whether a patent application or patent complies with the provisions of Article 26, paragraphs 3 and 4 of the Patent Law, is not just a matter of law. The question is still a question of fact. If a party claims that a person skilled in the art can realize certain technical solutions, it can prove its claim by proving the knowledge and ability of the person skilled in the art. One of the common difficulties in judicial practice is that if it is indeed impossible to determine which party's claim can be established based on the existing evidence, who should bear the adverse consequences. The commonly referred to as the burden of proof can be divided into the burden of proof in the behavioral sense and the burden of proof in the sense of result. The former means that the parties have the responsibility to provide evidence for the facts they claim, which is referred to as behavioral liability; the latter means that when the authenticity of the facts is unknown, the party claiming the facts bears the responsibility for adverse litigation consequences, which is referred to as result liability. Known as the burden of proof. If the judge still has difficulty judging whether certain technical solutions can be realized based on the existing evidence, how to determine the adverse consequences should be determined by the burden of proof or the distribution of the burden of proof in the sense of the result. Therefore, the distribution of the burden of proof is very important and often determines the outcome of a case. In a patent authorization administrative dispute case, if the patent applicant and the Patent Reexamination Board have a dispute over whether a person skilled in the art can realize all or part of the technical solution in the claim based on the description, and it is still difficult to determine whose claim is based on the evidence on record. If it can be established, who should bear the adverse consequences? The author believes that the patent applicant should bear the adverse consequences. This is because, from the standpoint of a person skilled in the art, if the judge still finds it difficult to judge whether all or part of the technical solutions in the claims can be realized based on the description, it just means that the disclosure in the description is insufficient or the claims are too broad to be Not supported by the manual. In administrative dispute cases over patent rights confirmation, if the invalidation petitioner and the patentee have a dispute over whether certain technical solutions can be realized, and it is really difficult for the judge to judge whose claim can be established based on the evidence on record, who should bear the disadvantage? What are the consequences? The author believes that there may be three different views. In the first view, the invalid requester should bear the adverse consequences. The main reason is that once a patent is authorized, it should be presumed to be valid, and the invalidity requester should bear the burden of proof for the claim that the patent is invalid. The second view is that the patentee should bear the adverse consequences. The main reason is that only patent applications that comply with paragraphs 3 and 4 of Article 26 of the Patent Law can be granted patent rights. The patent applicant and patentee shall bear the burden of proving that the patent application or patent complies with paragraphs 3 and 4 of Article 26 of the Patent Law from beginning to end. The third point of view is to distinguish between invention patents and utility model patents.

If it is an invention patent, when it is difficult to judge whether some of the technical solutions in the claims can be realized, the invalidation requester should bear the adverse consequences; if it is a utility model patent, when it is difficult to judge whether some of the technical solutions in the claims can be realized. If it can be realized, the patentee shall bear the adverse consequences. The main reason is that during the substantive examination process, the examiner has already examined whether the patent complies with paragraphs 3 and 4 of Article 26 of the Patent Law, so it can be presumed that it is valid. However, the utility model patent has not undergone substantive examination, and no one has examined whether it complies with paragraphs 3 and 4 of Article 26 of the Patent Law, so it cannot be presumed to be valid. The author believes that, taken together, the third view seems more reasonable. Of course, based on my country's current patent examination level, it is worth further discussion whether an invention patent that has undergone substantive examination can be preliminarily presumed to comply with the provisions of Article 26, paragraphs 3 and 4, of the Patent Law.