In patent examination procedure and patent invalidation procedure, words or comments such as "common knowledge in the art", "customary means in the art" and "conventional technical means in the art" are used frequently, which confused the patent applicant or patentee, or patent attorney, and they are confused how to distinguish these words, and how to deal with these comments. This article is intended to clarify the concepts and applicable environments of the above words for reference by the relevant persons.

1. Provisions of the Guidelines for Patent Examination on common knowledge

According to the Guidelines for Patent Examination, the fourth chapter of the second part, with regard to the inventive step judgment method provided that, "said distinguishing feature is common knowledge, for example, a customary means in the art for solving the redetermined technical problem, or a technical means for solving the redetermined technical problem disclosed in a textbook or reference book, etc. ". The eighth chapter with regard to the text of the Office Action provided that "The common knowledge of the art cited in the Office Action by the examiner shall be accurate. Where the applicant has objections to the common knowledge cited by the examiner, the examiner shall state the reasons or provide corresponding evidence for proof. ".

The fourth part - the review and invalidation announcement procedure provided that "The party concerned alleging that certain technical means is common knowledge in the art shall bear the burden of proof for its allegation. If the party cannot provide evidence to prove or cannot adequately explain that the technical means is common knowledge in the art, and the allegation is not acknowledged by the opposite party, the panel shall not support the allegation. The party concerned may prove that certain technical means is common knowledge in the art with reference to the technical contents recorded in a reference book such as a textbook, a technical dictionary, or a technical manual.”

2. Provision of the Guidelines for Patent Examination on customary means

According to the Guidelines for Patent Examination, the third chapter of the second part, with regard to Direct Substitution of Customary Means provided that “If the difference between the claimed invention or utility model and a reference document is merely a direct substitution of customary means employed in the art, the invention or utility model does not possess novelty. For example, if a reference document disclosed a device using screw fastening, and the claimed invention or utility model only replaces the screw fastening with bolt fastening, the invention or utility model does not possess novelty.”

3. The similarities and differences between common knowledge and customary means

From the above relevant provisions of the Guidelines for Patent Examination, the relationship between common knowledge and customary means is as follows: (1) the range contained in common knowledge is greater than the range of customary means, and common knowledge comprises customary means. (2) customary means are more commonly known than common knowledge, and the common degree is equivalent to "screw fixing" and "bolt fixing". The technical field to which the customary means belongs should be a broader technical field, such as mechanical, electrical and chemical, rather than a subdivided technical field. The technical field of common knowledge can be somewhat subdivided. (3) common knowledge basically needs common knowledge evidence to prove or sufficiently reasoning, unless the patent applicant or patentee does not object. The customary means does not require proof in principle, and only needs to be reasoned somewhat. (4) common knowledge can only be used in the commentary with regard to inventive step, but cannot be used in the commentary with regard to novelty. The customary means can be used in the commentary with regard to inventive step and novelty.

4. Regarding "conventional technical means in the art"

In the Office Action or the request for invalidation, a similar word is also used frequently, i. e. "conventional technical means in the art". With regard to the word, it is not explicitly used or not explicitly defined in the Guidelines for Patent Examination, and only in the second part substantively examining, the fourth chapter inventive step, in the provisions of combined inventions and selected inventions, "conventional technology" and "conventional means" are appeared. According to the described provisions, the author considers: (1) in terms of conceptual scope and the common degree, and the "conventional technical means" is between "common knowledge" and "customary means". (2) "conventional technical means" is the same as "common knowledge", and generally can only be used in the commentary with regard to inventive step, but cannot be used in the commentary with regard to novelty. Furthermore, conventional technical means also basically require common knowledge evidence to prove or sufficiently reasoning, unless the patent applicant or patentee does not object.

In summary, in response to an Office Action or request for invalidation, common knowledge, conventional technical means and customary means need to be distinguished, and different responses or defense strategies may be adopted according to the above similarities and differences. In brief, if the opposite party uses "common knowledge" or "conventional technical means", you need to keep an eye on whether the opposite party has provided common knowledge evidence or whether has sufficiently reasoned, whether the opposite party has used it in the commentary with regard to novelty, and can defend from these aspects. If the opposite party uses a "customary means", you need to keep an eye on whether the means really realizes the common degree of "screw fixing" and "bolt fixing", and thus you can defend from this aspect.