撤稿论文作为发明专利实质审查中的现有技术异议的认定

Determination of Retracted Papers as Prior Art Objections in the Substantive Examination of Invention Patents

在发明专利实质审查过程中,越来越多的非专利文献被用作对比文件。然而,近年来国内外学术不端事件频发,其中涉及一部分已发表论文被撤稿,由此可能导致申请人对专利审查员用于评述新颖性和/或创造性的现有技术的资格产生异议。本研究以一件审查案件为切入点,对撤稿论文作为现有技术资格的确认、相关复审案例启示等进行讨论,希望减少争议,以期对审查实践有所帮助。

In the process of substantive examination of invention patents, more and more non-patent literatures are used as reference documents in patent examination. However, due to the frequent occurrence of academic misconduct at home and abroad in recent years, some of the published papers have been retracted, which may lead to applicants′ qualifications for patent examiners to evaluate the novel and/or inventive prior art objection. Taking a review case as the starting point, this paper discusses the confirmation of retracted papers as prior art qualifications and the enlightenment of relevant review cases, hoping to reduce disputes and help review practice.