Page 10 - 2020 Policy Watch-Comparison of Secret Sale Patent
P. 10
icy Watch: Comparison between the US and China as to Whether a Secret Sale before the Date of Filing Affacts the Patent Application
The prior art shall be the technical contents that are ?°æ??????å½???¨ç?请æ?以å?????½å?å¾?????
available to the public before the date of filing. In other ???容ã????¥è?说ï??°æ??????å½???³è??¥ä»¥??
words, the prior art shall be in such a state that it is å¤???½å?为å?ä¼??å¾???¶æ???并å?????½å?使å?
available to the public before the date of filing and shall ä¼??ä¸???¥å?è´¨æ?§æ????è¯?????????
contain such content from which the public can obtain
substantial technical knowledge.?? ????¥æ???????¤å?äº??å¯??????????容为??
The Guideline of Examination excludes technology in ????????å¯?????ä»?????ä¿??è§?????è®?º¦
the state of secrecy as prior art. The state of secrecy in- ?????½¢ï¼?????社ä?è§?¿µ?????ä¸?????è¢??
cludes not only the situation where the obligation to 为å?å½?????å¯???¡ç???½¢ï¼??å¦??????????
keep secret arises from regulations or agreements re- �????�???
garding confidences, but also the situation where the
obligation to keep secret arises from social customs or å¦??è´??ä¿??ä¹????ººè¿??è§?????è®?????å¥?
commercial practices (i.e. from implicit agreement or æ³??ç§??ï¼???´æ????容å?å¼?ï¼?½¿????½å?å¾??
understandings). è¿???????è¿???????å°±æ?????°æ??????ä¸???
However, if the person with obligation to keep secret ????
breaches the regulation, agreement, or implicit under-
standing, thereby rendering the technical contents dis- ????¥æ??????举ä?ç§??å¼??¹å?ï¼??????????
closed and making the technologies available to the pub- 使ç??????»¥?¶ä??¹å??????½¿?¨å?å¼?????½å?
lic, these technologies shall form part of the prior art. 使å?ä¼???¥å??????容ç??¶é????½¿?¨ã????????
The Guideline of Examination lists three means of dis- ?£ã??º¤?????èµ????示ã????ºç??¹å?ï¼????ä¸?¿°
closure: disclosure by publications, disclosure by use, ?¹å?使æ??³æ????容å?äº??ä¼???¥ã??
and disclosure by other means. Means of disclosure
by use include making, using, selling, importing, ex- ??elsinn Healthcare S.A. v. Teva Pharms. USA,
changing, presenting, demonstrating, exhibiting and Inc.ä¸??Helsinn?¨å???º¤ä¸´æ?ä¸??两年???ä¸?å®?
the like, each of which can make the technical content ??°¼??¾¾å·???????GIç¾è?两份???ï¼??份è?
available to the public. ???è®??ä¸?份ä?åº?´ä¹°å?è®???¸¤ä»½å?è®???????
In the case of Helsinn Healthcare S.A. v. Teva Pharms. ??¿¡??????è¦??MGI对æ????è®???°ä»»ä½????
USA, Inc., Helsinn entered into two agreements with ä¿¡æ?è¿??ä¿????
MGI, a Minnesota pharmaceutical company: a license
agreement and a supply and purchase agreement two
years before Helsinn filed the provisional patent. Both
agreements included dosage information and required
MGI to keep confidential any proprietary information
received under the agreements.
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The prior art shall be the technical contents that are ?°æ??????å½???¨ç?请æ?以å?????½å?å¾?????
available to the public before the date of filing. In other ???容ã????¥è?说ï??°æ??????å½???³è??¥ä»¥??
words, the prior art shall be in such a state that it is å¤???½å?为å?ä¼??å¾???¶æ???并å?????½å?使å?
available to the public before the date of filing and shall ä¼??ä¸???¥å?è´¨æ?§æ????è¯?????????
contain such content from which the public can obtain
substantial technical knowledge.?? ????¥æ???????¤å?äº??å¯??????????容为??
The Guideline of Examination excludes technology in ????????å¯?????ä»?????ä¿??è§?????è®?º¦
the state of secrecy as prior art. The state of secrecy in- ?????½¢ï¼?????社ä?è§?¿µ?????ä¸?????è¢??
cludes not only the situation where the obligation to 为å?å½?????å¯???¡ç???½¢ï¼??å¦??????????
keep secret arises from regulations or agreements re- �????�???
garding confidences, but also the situation where the
obligation to keep secret arises from social customs or å¦??è´??ä¿??ä¹????ººè¿??è§?????è®?????å¥?
commercial practices (i.e. from implicit agreement or æ³??ç§??ï¼???´æ????容å?å¼?ï¼?½¿????½å?å¾??
understandings). è¿???????è¿???????å°±æ?????°æ??????ä¸???
However, if the person with obligation to keep secret ????
breaches the regulation, agreement, or implicit under-
standing, thereby rendering the technical contents dis- ????¥æ??????举ä?ç§??å¼??¹å?ï¼??????????
closed and making the technologies available to the pub- 使ç??????»¥?¶ä??¹å??????½¿?¨å?å¼?????½å?
lic, these technologies shall form part of the prior art. 使å?ä¼???¥å??????容ç??¶é????½¿?¨ã????????
The Guideline of Examination lists three means of dis- ?£ã??º¤?????èµ????示ã????ºç??¹å?ï¼????ä¸?¿°
closure: disclosure by publications, disclosure by use, ?¹å?使æ??³æ????容å?äº??ä¼???¥ã??
and disclosure by other means. Means of disclosure
by use include making, using, selling, importing, ex- ??elsinn Healthcare S.A. v. Teva Pharms. USA,
changing, presenting, demonstrating, exhibiting and Inc.ä¸??Helsinn?¨å???º¤ä¸´æ?ä¸??两年???ä¸?å®?
the like, each of which can make the technical content ??°¼??¾¾å·???????GIç¾è?两份???ï¼??份è?
available to the public. ???è®??ä¸?份ä?åº?´ä¹°å?è®???¸¤ä»½å?è®???????
In the case of Helsinn Healthcare S.A. v. Teva Pharms. ??¿¡??????è¦??MGI对æ????è®???°ä»»ä½????
USA, Inc., Helsinn entered into two agreements with ä¿¡æ?è¿??ä¿????
MGI, a Minnesota pharmaceutical company: a license
agreement and a supply and purchase agreement two
years before Helsinn filed the provisional patent. Both
agreements included dosage information and required
MGI to keep confidential any proprietary information
received under the agreements.
10
