Evidence of Common General Knowledge in Patent Litigation

1. Two Additional Forms of Evidence

Common general knowledge includes technical information recorded in textbooks, technical dictionaries and manuals. Two further forms of evidence may also be relevant.

First, several patent documents disclosing the same technical feature may be considered together. Article 13 of the patent grant and confirmation section of the Beijing High People’s Court’s 2016 developments in intellectual property adjudication recognizes that patent documents widely known and accepted by skilled persons may establish common general knowledge.

Technology can develop faster than textbooks, manuals and dictionaries are updated. Techniques may already be widely used and accepted in an industry before appearing in those sources. For that reason, several patent documents published before the filing date may be used together to establish that a feature was common general knowledge.

Second, national standards may be used. These are typically prepared with reference to international standards through investigation, review, consolidation and adjustment by relevant institutions, and are approved and published by the competent authority. Their nationwide application supports their use as standalone evidence of common general knowledge.

2. Can a 3GPP Specification Establish Common General Knowledge?

A 3GPP specification is not a national standard and generally cannot establish common general knowledge on its own.

In Beijing Intellectual Property Court case No. 3495 of 2015, the court stated that whether a technical solution in a 3GPP specification is common general knowledge depends on whether it is already widely accepted by telecommunications specialists and has reached the requisite level of general familiarity.

The specification’s contents should not automatically be treated as common general knowledge. Other documentary evidence should be used with it to establish whether the technical feature was generally known.

Thus, textbooks, technical manuals, technical dictionaries and national standards may generally be used alone. A 3GPP specification requires supporting documentary evidence, while multiple patent documents must be considered together.