Applicant for retrial (plaintiff of first instance, appellant of second instance): Xu, male, Han nationality, 1 born on June 4th, 938, director and senior engineer of Mudanjiang Petrochemical Container Equipment Anticorrosion Factory, living in Daqing Office of yangming district, Mudanjiang City, Heilongjiang Province1group.
Authorized Agent: Liu Ying, lawyer of Tianyuan Law Firm in Mudanjiang City, Heilongjiang Province.
Authorized Agent: Wu, male, Han nationality,1937110, born in October, is the patent agent of Beijing Shuangshou Intellectual Property Agency Co., Ltd., and his domicile isNo. kloc-0/02, Building 28, Anxiangli, Chaoyang District, Beijing.
Respondent for retrial (defendant in first instance, appellee in second instance): Patent Reexamination Board of State Intellectual Property Office, domicile: No.6, Xitucheng Road, Jimenqiao, Haidian District, Beijing.
Legal Representative: Liao Tao, deputy director of the Committee.
Authorized Agent: Chai, examiner of the Administrative Litigation Review Department of the Committee.
Authorized Agent: Cui Guozhen, examiner of the Administrative Litigation Review Department of the Committee.
The third person in the original trial: Xing, male, Han nationality,1born on June 2, 959, general manager of hailin city Anticorrosion Company, Heilongjiang Province, and his domicile is the 32nd Committee of Hailin Town, hailin city, Heilongjiang Province.
Authorized Agent: Li, lawyer of Beijing Shengzhi Law Firm.
Authorized Agent: Liu Hong, female, Han nationality, born on April 6, 1979, legal adviser of hailin city Anticorrosion Company in Heilongjiang Province, living at No.4 Xiqing Road, Hongqiao District, Tianjin.
On April 9, 2000, the retrial applicant Xu, the Patent Reexamination Board of the State Intellectual Property Office (hereinafter referred to as the Patent Reexamination Board) and the third person in the original trial Xing made the administrative judgment of second instance ((2000) Kochi ZZ No.72) by the Beijing Higher People's Court, which has taken legal effect. Xu refused to accept, and applied to our court for retrial. On March 28th, 2005, our hospital made an administrative ruling (200 1) No.20-1,and decided to send it back for retrial. A collegiate bench was formed in our college according to law, with the presiding judge as the presiding judge, and Judge He and Cui Lina as the clerk of this case. On April 5, 2005, the parties to the Japanese case exchanged evidence to clarify the main controversial issues in this case. On April 2, 2005 and August 5, 2005, the collegial panel heard the case in public. Xu and his entrusted agents Liu Ying and Wu, the entrusted agents Chai and Cui Guozhen of the Patent Reexamination Board, and Xing and his entrusted agents Li and Wu attended the proceedings. The case has now been closed.
The Beijing Higher People's Court found that on June 8, 1988, 1988, Xu applied to the Chinese Patent Office for an invention patent, entitled "A method for anticorrosion of internal and external walls of steel pipe bundles", and was granted the patent right on March 6, with the patent number of 19 19. Ten, the invention patent claim is:
1. An anticorrosion method for the inner and outer walls of steel tube bundles of coolers and heat exchangers, that is, a phosphating layer is formed on the surfaces of the inner and outer walls of steel tube bundles of coolers and heat exchangers, and then painted, which is characterized in that (a) the cooler, metal tube bundles of heat exchangers, pumps, valve groups and solution tanks are connected by rubber pipes and iron pipes according to the technological process to form a closed-loop system; (b) Various treatment liquids (alkali liquor, acid liquor, phosphating liquor) used to treat the inner and outer wall surfaces of metal steel tube bundles of coolers and heat exchangers are in a continuous (intermittent) circulating flow state in the whole process.
2. According to claim 1, the process flow steps of forming phosphating layer on the inner wall surface of steel tube bundle of cooler and heat exchanger before painting include: (1) spraying noise (sand); (2) pickling: (3) neutralization; (4) phosphating; (5) drying: (6) coating.
3. According to claim 1, a phosphating layer is formed on the surface of the outer wall of the steel tube bundle of the cooler and the heat exchanger, and then the coating is carried out. The process step is to use chemical degreasing instead of sand blasting, and the remaining steps are the same as those described in claim 2.
4. In the coating step according to claim 2, the coating amount is two thirds of the tube side volume or the shell side volume.
According to the patent specification of the invention, the anticorrosion method for the inner and outer walls of metal steel pipe bundles of coolers and heat exchangers in petroleum, chemical and other industries belongs to a new metal anticorrosion technology. That is to say, at present, the tube bundles of coolers and heat exchangers in petroleum and chemical industries can only carry out sandblasting treatment (or chemical treatment) on the inner wall, and then brush with organic coatings (epoxy phenolic resin, 79 10, CH784, etc.). ). A passivation film is formed on the metal surface by adhesion between the coating and the metal tube. This anti-corrosion treatment method has poor adhesion between the coating and the metal steel substrate. After coating, it can penetrate trace moisture and generate oxide with the metal surface, which makes the coating blister, crack and fall off, and the substrate rust. The high temperature resistant medium is below 65438 05℃, and the anti-corrosion treatment period is long. The idea of the invention is: after sandblasting and descaling the inner and outer walls of the tube bundle of large-scale complex structure equipment in petrochemical industry, the inner and outer walls of the tube bundle are connected through a pump, a valve, a pipeline and a solution tank according to the technological process, a phosphating layer is formed first, and then paints with different physical and chemical characteristics are selected for coating according to different media requirements and different temperature requirements.
This manual discloses an embodiment and records the following technical scheme: after the inner wall of the cooler pipe is derusted and sandblasted according to the conventional process, it is connected with the auxiliary equipment pump, valve, pipeline and solution tank according to the schematic diagram of the process flow. The anticorrosion process steps of the inner wall of the cooler pipe disclosed in this embodiment include: (1) pickling; (2) neutralization; (3) phosphating; (4) flushing the inner wall of the pipeline with clear water, and then purging with compressed air; (5) drying; (6) painting. In this embodiment, it is also disclosed that the difference between the outer wall anticorrosion treatment and the inner wall treatment lies in four aspects: (1) connecting the pump outlet with the shell side population, and the shell side outlet is connected with the required solution tank respectively; (2) chemical degreasing, and alkaline washing at 70-9090 DEG C for 45 minutes; (3) hot water washing after alkali washing, and then cold water washing; (4) Drying is carried out through the steam inlet at the outlet of the tube side of the cooler.
1On March 28th, 997, Xing filed a request for invalidation of the invention patent of "a method for anticorrosion of internal and external walls of steel pipe bundles" with the Patent Reexamination Board, on the grounds that the invention patent of "a method for anticorrosion of internal and external walls of steel pipe bundles" did not conform to the provisions of the second and third paragraphs of Article 22 of the Patent Law. 1998 04 13 Xing pointed out in his opinion statement that the patent of the present invention does not conform to the provisions of the fourth paragraph of Article 26 of the Patent Law.
1On June 7th, 998, the Patent Reexamination Board received a request for invalidation of the invention patent right of "A method for anticorrosion of internal and external walls of steel pipe bundles" submitted by Venus Anticorrosion Company in Honggang District, Daqing City (hereinafter referred to as Venus Company). Venus Company believes that the invention patent of "a method for anticorrosion of internal and external walls of steel pipe bundles" does not conform to the provisions of Article 26, paragraph 4, Article 22, paragraphs 3 and 4 and Article 26, paragraph 3 of the Patent Law.
The Patent Reexamination Board tried the two requests for invalidation together, and issued an oral hearing notice on March 22, 65438 1998+ 10. The main issue involved in the oral hearing is whether the patent complies with the provisions of paragraph 4 of Article 26 and paragraphs 2 and 3 of Article 22 of the Patent Law.
During the oral hearing on1March, 1999 10, the parties expressed their opinions on whether the invention patent of "a method for anticorrosion of internal and external walls of steel pipe bundles" conforms to the provisions of the patent law.
On June 4th, the Patent Reexamination Board made a decision on the request for invalidationNo. 1999. 1372, declaring the permitted invention patent number as. 88 1035 19.x "A method for anticorrosion of internal and external walls of steel pipe bundles" is invalid because the claim is not supported by instructions.
Xu refuses to accept the decision 100 1 made by the Patent Reexamination Board. 1372, and bring a lawsuit to Beijing No.1 Intermediate People's Court. The Beijing No.1 Intermediate People's Court held in the first instance that Xu advocated that the Patent Reexamination Board violated the principles of trial, punishment and request of the parties, which was inconsistent with the facts and was not adopted. The claim of the invention patent "A method for anticorrosion of internal and external walls of steel pipe bundles" is not based on the specification and does not conform to the provisions of Article 26, paragraph 4, of the Patent Law. Xu's reason for prosecution cannot be established, and his request for prosecution is not supported. Judgment: reject Xu's claim and maintain the decision on examining the request for invalidation. 800 yuan, the case acceptance fee, shall be borne by Xu.
Xu refused to accept the judgment of Beijing No.1 Intermediate People's Court and appealed to Beijing Higher People's Court. After trial, the Beijing Higher People's Court held that the Patent Reexamination Board handed over the evidence materials and opinions to the requester and the respondent in accordance with the regulations during the trial, and indicated in the notice of oral trial whether the scope of oral trial included whether the invention patent right of "a method for anticorrosion of internal and external walls of steel pipe bundles" conformed to the provisions of Article 26, paragraph 4, of the Patent Law, and Xu also explained this in the written reply to the oral trial of the Patent Reexamination Board. Xu's grounds for appeal cannot be established, and the court ruled that the appeal was rejected and the original judgment was upheld in accordance with the provisions of Item (1) of Paragraph 1 of Article 54 of the Administrative Procedure Law of the People's Republic of China. First, the second instance of the case acceptance fee shall be borne by Xu.
Xu refused to accept the judgment of the second instance and applied to our hospital for retrial, requesting our hospital to revoke the decision of the Patent Reexamination Board 1372 and the judgments of the courts of first and second instance according to law, so as to maintain the validity of the patent right, and the Patent Reexamination Board shall bear all the litigation costs of this case. The main reasons for applying for retrial are:
Decision 1 The 1372 of the Patent Reexamination Board violates the principles of hearing and request stipulated in the examination guidelines.
Decision No.2 1372 found that the patent claim involved could not be supported by the specification, the evidence was insufficient, and the applicable laws and regulations were wrong.
The reasons for the defense of the Patent Reexamination Board are as follows:
(1) The respondent completely followed the principles of request and hearing in the patent invalidation examination procedure involved.
(2) Claim 1 requests to protect the inner and outer walls of steel tube bundles of coolers and heat exchangers, the contents of which are not recorded in the specification. According to the specification, the anti-corrosion treatment of the inner wall of the tube bundle and the anti-corrosion treatment of the outer wall of the tube bundle are two different technical schemes, and it is difficult for ordinary technicians in the field to obtain the technical scheme described in claim 1 after reading the specification. For the same reason, Claims 2 and 3, which are subordinate to Claim 1, and Claim 4, which is subordinate to Claim 2 or 3, are of course not supported by the specification and do not conform to the provisions of Paragraph 4 of Article 26 of the Patent Law. Therefore, the decision 1372 is correct for the determination that the patent claim 1-4 involved is not supported by the specification.
Our court found through trial that the facts identified by the court of first instance were basically true, but other facts of this case were omitted. We also found that:
(a) Regarding whether DecisionNo. 1372 violates the principles of hearing and request of the parties.
1.1On March 28th, 997, Xing filed a request for invalidation of the patent right in this case with the Patent Reexamination Board, on the grounds that this patent does not conform to the provisions of the second and fourth paragraphs of Article 22 of the Patent Law, that is, it lacks novelty and creativity, and does not involve the question whether the relevant claims in the fourth paragraph of Article 26 of the Patent Law are supported by the specification.
2.1998 On April 13, the Patent Reexamination Board received Xing's opinion statement, in which Xing put forward the reasons why the patents involved did not conform to the provisions of Article 26, paragraph 4, of the Patent Law. Specifically, the distinguishing feature (b) of claim 1 cannot be described in the specification, nor can it clearly and accurately support this distinguishing technical feature. Therefore, claim 1 cannot be supported by the specification, while other claims 2-4 are subordinate claims of claim 1, and certainly cannot be supported by the specification.
In the same year1October 30th, 10, the Patent Reexamination Board received Xu's opinion statement. In this opinion statement, it is stated that the distinguishing feature (b) of claim 1 of the present invention is supported by the specification on the grounds that the patent involved in the case does not conform to the provisions of paragraph 4 of Article 26 of the Patent Law.
3.1998165438+1October 23rd, Xing once again submitted the facts and reasons for the invalidation of this patent right to the Patent Reexamination Board, in which the reasons for the patent involved not conforming to the fourth paragraph of Article 26 of the Patent Law recorded that the process was to connect the metal steel pipe bundles, pumps, valves and pipes of coolers and heat exchangers through rubber pipes and iron pipes according to the technological process. This process is completed by treating various treatment liquids (alkali liquor, acid liquor and phosphating liquor) on the inner and outer wall surfaces of the metal steel tube bundle of the cooler and heat exchanger in a continuous and uninterrupted circulating flow state throughout the process flow, which is not fully disclosed in the instruction manual.
4.65438+1June, 1998 17, the Patent Reexamination Board received a request for invalidation of the patent right submitted by the outsider Jinxing Company. Among them, the specific reasons for the non-compliance with the provisions of Article 26, paragraph 4 of the Patent Law are as follows: (1) The feature of "closed circuit" in feature (a) is not described in the specification, and ordinary technicians in this field cannot conclude that it is a closed-circuit circulation system after reading the specification; Feature (b) requires that all kinds of treatment liquids are in continuous and uninterrupted circulating flow. However, there is no description of this technical feature in the manual. After reading the instructions, people in the ordinary field may not necessarily think of making various treatment liquids in a continuous and uninterrupted circulating flow.
5. 1998 12.22, the Patent Reexamination Board sent Xu a notice of oral hearing, in which the column of "main issues involved in oral hearing" stated: "Does this patent comply with the provisions of Paragraph 4 of Article 26, Paragraph 2 and Paragraph 3 of Article 22 of the Patent Law?"
6. 1 On March 8th, 999, Xing stated in the outline of the applicant's oral hearing that the patent claim in this case could not be supported by the specification: the remarkable feature of the claim1is that "all kinds of treatment liquids (alkali liquor, acid liquor and phosphating solution) used to treat the inner and outer wall surfaces of metal steel pipes of coolers and heat exchangers are available in the whole process, but nothing in the specification can be clear.
On March 71999 10, the Patent Reexamination Board conducted an oral hearing on the patents involved. The Patent Reexamination Board did not provide the corresponding records of the main process and contents of the oral hearing.
On 8.65438+1March, 1999 10, Xu submitted a copy of the respondent's power of attorney (supplement) to the patent re-examination board. In the patent claim 1 feature (b), "all kinds of treatment liquids (alkali liquor, acid liquor, phosphating liquor) used to treat the inner and outer wall surfaces of metal steel tube bundles of cooler and heat exchanger equipment in the whole process flow, of course refer to the liquids used to treat the inner and outer wall surfaces of metal steel tube bundles of cooler and heat exchanger equipment. Although alkali is also used for neutralization in this patented method, its dosage is very small, and it does not need to be recovered because its concentration is very low and it contains acid radicals. The petitioner thinks that the treatment solution described in the claim is not circulated in closed circuit because the neutralizing alkali is not circulated, which is incorrect.
9.65438+1March, 199915th, Yueming Wang, an outsider, filed a request for invalidation of the patent in question with the Patent Reexamination Board on the grounds that the patent in question was not supported by the specification, and submitted a request for invalidation of the patent. As the pickling (acid solution), neutralization (alkali solution) and phosphating (phosphating solution) described in the specification do not support various treatment solutions (alkali solution, acid solution and phosphating solution) in Claim 1(b), the third request is invalid.
10. 199 March19, the Patent Reexamination Board received a copy of the Agency Statement (Statement after Oral Trial) submitted by Xing. It is pointed out that the anti-corrosion treatment method of tube bundle inner wall described in the specification is different from that described in claim 1, so claim 1 cannot be supported by the specification.
The Patent Reexamination Board did not forward the entrustment statement to Xu.
(2) Whether the facts on which the request is based are standardized.
1. Can the technical solutions required by claims 1, 2, 3 and 4 be summarized from the specification?
(1) Paragraph 6 of the specification records the attached drawings.
(2) Paragraph 7 of the manual records an example of the anti-corrosion treatment method for the internal and external walls of the pipeline.
(3) The instruction manual is attached with a schematic diagram of the anti-corrosion treatment process for the inner and outer walls of the cooler pipe, which shows that the steel pipe bundle, pump, valve group and solution tank are connected by rubber pipes and iron pipes according to the process flow.
2. Whether the process step of forming phosphating layer, that is, the surface treatment technology before painting, is a fact of the prior art..
(1) The first volume of Painting Technology (edited by Wang Xichun and Jiang Yingtao, published by Chemical Industry Press in June, 1986) states in the third chapter "Surface treatment before painting" that all preparations for the surface of the painted object before painting are called surface treatment before painting. Surface treatment before painting, painting and drying are the three main working procedures of painting process.
It is explained in the section "Oil removal of metals" that the most commonly used oil removal methods before painting are alkali cleaning, organic solvent cleaning, surfactant cleaning, emulsion cleaning and so on. The choice of degreasing method depends on the nature of oil pollution, the degree of pollution, the material of the cleaned object and the generation mode.
In the part of "chemical derusting", the inorganic pickling process is introduced as follows: degreasing alkali tank, hot water tank, pickling tank, cold water tank, intermediate tank, cold water tank, phosphating tank, hot water tank and paint maintenance.
(2) In the chapter "Surface Preparation of Parts" of Electroplating Manual (Volume I) (edited by Electroplating Manual, published by National Defense Industry Press in June 1977), the part about "sandblasting treatment" wrote: "Sandblasting is to remove burrs, scales, slag and other impurities on the surface of metal products. ..... Sand blasting is to use purified compressed air to forcefully spray dry sand flow on the surface of metal products, thus destroying the dirt on them. Sandblasting sand should be dry, and the surface of metal products should be dry and oil-free, otherwise the sandblasting effect is not good. "
(3) Electroplating Technology (edited by the editorial board of electroplating workshop of state-owned HSBC Machinery Factory and published by Machinery Industry Press 1959) further lists and introduces the phosphating process regulations on page 1 14. Namely: chemical degreasing-hot water washing-cold water washing-pickling-cold water washing-soda soap treatment-hot water washing-phosphating-hot water washing-passivation treatment-hot water washing-distilled water washing-compressed air drying-drying-appearance inspection-painting.
(4) The Dictionary of Modern Science and Technology (Volume II) (published by Shanghai Science and Technology Publishing House in February, 1980) defines the word "sandblasting cleaning" as "a surface treatment method of blowing steel grit, stone grit or other abrasives to an object to produce a rough surface or remove dirt, rust and scale. Use gas jet or liquid jet containing abrasive to remove dirt on solid surface.
Page 195 explains the word "neutralization": "Add alkali to an acidic solution, or add acid to an alkaline solution to make the solution neutral (neither acidic nor alkaline, pH 7)."
(5) Xing said in the statement submitted to the Patent Reexamination Board: "Common knowledge of painting technology tells people that in order to prevent corrosion, paint can be applied to metal surfaces. Before painting, the metal surface should be treated to remove dirt (including oil, rust, scale, old paint, etc.). ) on the metal surface, and then phosphating, forming a phosphating layer on the metal surface, so that the coating is combined with the metal surface. Methods of purifying metal surface include mechanical cleaning (such as sandblasting) and chemical cleaning, and chemical cleaning includes alkali cleaning and acid cleaning. This common sense can be found in any book about painting technology, such as reference document 2 (note: the first volume of painting technology mentioned above), especially chapter 3' Surface treatment before painting', which describes the above common sense in detail. "
All parties have no objection to the above facts.
In our opinion, the main issue in dispute in this case is whether the first decision is established. 1372 violates the hearing principle and request principle stipulated in the review guide, and whether the patent claim in this case is based on the specification.
(a) Regarding whether decision 10/200 1 violated the principle of hearing and the principle of request of the parties.
1. On violating the principle of hearing
Paragraph 4 of Article 26 of the Patent Law stipulates that "the patent claim shall be based on the specification", which is one of the legal conditions for granting the patent right. If the granted patent right does not meet the conditions specified in this paragraph, that is, the claim is not supported by the specification, anyone may request the Patent Reexamination Board to declare the patent right invalid. However, if the claimant requests the invalidation of the patent right in accordance with the provisions of this paragraph, he shall put forward specific facts and reasons. The so-called "giving the parties an appropriate opportunity to explain and state their reasons in procedure" stipulated in Section 8.4 of Chapter 1 of the Review Guide (version 1993), that is, the principle of hearing, is to give the parties an appropriate opportunity to explain and state these specific facts and reasons, especially as the facts and reasons on which the review decision is based, the parties must be given the opportunity to explain and state their reasons.
Judging from the facts ascertained by the court of first instance and the supplementary facts ascertained by our court, the third person in the first instance, Xing Xing, and the outsider Jinxing Company filed a request for invalidation of the patent right involved with the Patent Reexamination Board, and ended the oral hearing of the Patent Reexamination Board on March199. The main reasons why the patent involved in the case claimed by the patentee does not conform to the provisions of Article 26, paragraph 4 of the Patent Law can be summarized as follows: the distinguishing feature (a) of claim 1 is not described in the specification, and it may or may not be closed; The distinguishing feature (b) states that various treatment liquids are in a "continuous and uninterrupted circulating flow state", which is not described in the manual, and the flow of treatment liquids is not continuous and uninterrupted. The opinions expressed by retrial applicant Xu in the administrative procedure of patent invalidation are also aimed at the above reasons for invalidation. Xing, the third person in the original trial, and Jinxing Company, an outsider in the case, did not give the invalid reasons mentioned in the "Applicant's opinion" section of line 2 1-26 on page 4 of decision 1372.
It can be seen from the fact that item 10 about procedural supplement ascertained by our court that this part of the reasons for invalidation in decision 1372 is actually summarized according to the entrustment statement (statement after oral hearing) submitted by the third person in the original trial to the Patent Reexamination Board on March, 2009 1999. The essence of these contents is that the patent claim 1 involved in the case summarizes the anti-corrosion treatment method of the inner wall and outer wall of the tube bundle as a technical scheme, while the anti-corrosion treatment method of the inner wall of the tube bundle and the anti-corrosion treatment method of the outer wall of the tube bundle recorded in the specification are two different technical schemes, so the claim 1 cannot be supported by the specification. Xing, the third person in the original trial, submitted an agent statement on the invalid reasons of the patent claims involved after the oral hearing, which is obviously different from the reasons previously put forward by Jinxing Company, an outsider.
However, because this part of the reason for invalidation was put forward by Xing, the third person in the original trial, after the oral hearing, and the Patent Reexamination Board did not transfer the power of attorney to the retrial applicant, Xu said that he did not know the reason for invalidation in the patent invalidation procedure on page 4, line 2 1-26 of DecisionNo. 1372, that is, the Patent Reexamination Board made a declaration according to the new reason for invalidation put forward by Xing, the third person in the original trial after the oral hearing. This is clearly stated in the fourth reason of decision 1372. On the contrary, the reasons for invalidation put forward by the applicant and stated by the respondent, that is, the "closed-loop system" described in the patent claim 1 distinguishing feature (a) involved is not closed, and various treatment liquids described in feature (b) are not in a "continuous and uninterrupted circulation state", which was not dealt with in decision 106. 1372. The examination guide is an administrative regulation formulated by China National Intellectual Property Administration in accordance with the Patent Law and its detailed rules for implementation, which stipulates the operating norms for patent authorization and patent invalidation reexamination, and is binding on the Patent Reexamination Board and should be strictly observed. Section 8.4 of Chapter I of Part IV of the Review Guide (version 1993) stipulates: "The parties in the procedure should be given an appropriate opportunity to explain and state their reasons, especially before making a decision against them." Because the Patent Reexamination Board made decision 106. 1372, which is unfavorable for Xu to apply for retrial, has no evidence to prove that giving Xu an appropriate opportunity to explain and state the reasons on which the decision is based violates the procedures stipulated in the review guidelines and belongs to "violation of legal procedures" as stipulated in Item 3, Paragraph 2, Article 54 of the Administrative Procedure Law of the People's Republic of China.
The Patent Reexamination Board and Xing, the third person in the original trial, argued that the retrial applicant Xu explained and stated the reasons for the invalidation of patent claimNo. 1 proposed by Xing He, the third person in the original trial, because the distinguishing features (a) and (b) were not supported by the specification and did not conform to the provisions of the fourth paragraph of Article 26 of the Patent Law. However, judging from the ascertained facts, whether it is the opinion statement submitted by the retrial applicant to the Patent Reexamination Board, including the respondent's attorney (supplement) submitted by 1999 in March of 10, or the "respondent's opinion" summarized by decision 1372, They are all statements about the problem of "closed loop system" mentioned in the distinguishing feature (a) of claim 1 put forward by Xing, while the outsider Venus Company is not closed, and the various treatment liquids mentioned in the distinguishing feature (b) are not in a continuous and uninterrupted circulation state. Xu didn't get a proper opportunity to explain and state the reasons for invalidation, which was based on decision 1372, "Claim 1 summarized the method of inner wall and outer wall of pipeline as the treatment method of inner and outer wall of pipeline".
The Patent Reexamination Board and Xing, the third person in the original trial, also claimed that during the oral hearing of the patent involved by the Patent Reexamination Board on March 1999, the retrial applicant Xu explained and stated the specific reasons for invalidation according to DecisionNo. 1372, and recorded the above contents in the entrustment statement submitted by Xing, the third person in the original trial, to the Patent Reexamination Board.
AnnouncementNo. 10 issued by the former China Patent Office on July 1996+0 1 stipulated: "During the oral hearing, the person in charge of the collegial panel shall designate the members of the collegial panel to take notes. When necessary, the collegiate bench may request the Patent Reexamination Board to designate a clerk to make records. The recorder shall record the important trial matters in the Record of Oral Trial. " "After the oral hearing, the collegiate bench group shall submit the transcripts to the parties for reading. The parties concerned have the right to request the correction of errors in written records. After the transcript is verified to be correct, it will be signed by the parties and filed. " Because the Patent Reexamination Board cannot provide the Oral Trial Record or other similar evidence of the above disputed facts, it has been given an opportunity to explain and state the reasons appropriately, which will not be adopted by our hospital.
Xing, the third person of the original trial and the Patent Reexamination Board, thinks that as long as the reasons for invalidation of the patent involved put forward by the petitioner are general and the Patent Reexamination Board generally informs in the notice of oral hearing, the scope of oral hearing includes the contents that the patent involved does not conform to the fourth paragraph of Article 26 of the Patent Law, and covers all the specific facts, reasons and evidence that the patent involved does not conform to the fourth paragraph of Article 26 of the Patent Law. Even if the parties in the invalidation procedure did not explain and state the specific facts, reasons and evidence, especially the facts, reasons and evidence on which the invalidation decision was based, they believed that the parties in the invalidation procedure were given an appropriate opportunity to explain and state the reasons and followed the principle of hearing. This understanding is incorrect. Paragraph 4 of Article 26 of the Patent Law is only an abstract provision, and the patent right does not conform to the provisions of paragraph 4 of Article 26 of the Patent Law. It is only a general reason for declaring the patent right invalid, and it is aimed at all patent rights. Specific to a case, the facts, reasons and evidence that do not conform to the provisions of the fourth paragraph of Article 26 of the Patent Law are specific and targeted. The so-called giving the parties an appropriate opportunity to explain and state their reasons in the administrative procedure means giving them an appropriate opportunity to explain and state their reasons for these specific facts, reasons and evidence in the administrative procedure, especially the facts, reasons and evidence on which decisions against one party are based, and we must fully listen to the statements and defenses of the parties. If there are no specific facts, reasons and evidence, the reasons explained and stated by the parties are not targeted and there is no way to explain and state the reasons. As far as this case is concerned, decision 1372 declared the patent involved invalid with specific facts and reasons. Patent claimNo. involved 1 summarizes the anti-corrosion treatment method of the inner wall and outer wall of the tube bundle as a technical scheme, but the anti-corrosion treatment method of the inner wall and outer wall of the tube bundle recorded in the specification is two different treatment methods, so this claim cannot be supported by the specification. In the procedure of invalidation, the Patent Reexamination Board shall give the retrial applicant an appropriate opportunity to explain and state this specific fact and reason, so that it can be considered that the hearing principle stipulated in the examination guide has been followed, and only the petitioner has put forward the reasons for invalidation that the patent involved does not conform to the provisions of Article 26, paragraph 4, of the Patent Law. In the notice of oral hearing, the Patent Reexamination Board informed the parties that the scope of oral hearing included the contents that the patent involved did not conform to the provisions of Article 26, paragraph 4 of the Patent Law, and that it was unconvincing to give the parties an appropriate opportunity to explain and state their reasons and to follow the trial principles stipulated in the review guidelines.
Therefore, looking at all the facts of the disputed issues in this case, the applicant for retrial Xu claimed that the reasons for applying for retrial in decisionNo. 1372 of the Patent Reexamination Board, which violated the principle of hearing, were more sufficient and convincing than the rebuttal reasons advocated by the Patent Reexamination Board and the third person in the original trial Xing, and our court adopted them.