2010 Xing Zhuan Su Zi No. 58
|Decision No.||2010 Xing Zhuan Su Zi No. 58|
|Date||October 7, 2010|
The determination of "direct replacement" of the novelty requirement is a replacement that a person of ordinary skill in the art can make by applying general knowledge, after comparing one single prior application and the application at dispute, in terms of the differences existing among part of the technical features. The technical features for the replacement and general knowledge do not create a different function for the technical measures, as a whole, of the application at dispute. The replacement made by a person of ordinary skill in the art pertaining to the invention is limited to a single technical method that only can be thought of through general knowledge. If a combination of technical measures is applied and a replacement of technology is incorporated, then that is not the case. According to the arguments made by Plaintiff, the combination part of the patent at dispute is considered as the combination of the pin-connection member and the through hole, two of which are in a separation mode, as shown in the number three evidence. So, the separation mode is directly replaced by a single-body mode. That is, the pin-connection member in the number three evidence must first be combined with the circular hole. Then, the particular part of the technical features of "holes in the combination member" in claim 1 of the patent at dispute is recited for comparison. However, that requires a further combination prior to the replacement, which is not a direct replacement. Moreover, after the measure of simultaneous combination and replacement of technology as Plaintiff mentioned, the result is still an omission of screws for positioning and positioning holes as shown in the number three evidence. Then, the hexagonal concave part as shown in the number three evidence is modified to be tooth-typed such that the combination member in the number three evidence can be the same as the combination member of the patent at dispute. Therefore, if the number three evidence is intended to be the same as the holes in the combination member of claim 1, that requires the application of so many technical measures including combination, replacement, omission, and modification. That is not one single technical method for direct replacement. So, the arguments made by Plaintiff for that are beyond the scope of "direct replacement" so as to be not acceptable.
direct replacement, novelty
|Relevant statutes||Article 98-1 of the Patent Act as amended in October 24, 2001 (Article 95 of the current Patent Act)|
- Release Date:2020-11-13