An Administrative Dispute about the Nullification of Invention Patent Right to "Grain Flour Milling Method and Equipment"

The Plaintiff (the petitioner): Buhler Company (Switzerland)

The Defense (Appellee): Patents Reexamination Committee of State Intellectual Property Rights and Patent Office (Hereinafter referred to as "Patent Reexamination Committee")

Third Party: Patents Management Department of China National Nuclear Industry Corporation (hereinafter referred to as "Patents Management Department of the Nuclear Industry Corporation")

Third Party: Tianjin Huahe New Technology Development Company

Cause of Action: An Administrative Dispute about the Nullification of Patent Right

The Series Number in Initial Trial: Beijing First Intermediate People's Court (1996)

The Series Number in Appeal: Beijing Higher People's Court (1997) Gaozhi Zhongzi No.19

Details of the Case:

The Charge and Pleading Ground

The plaintiff, Buhler Company, refuses to accept No.688 Examination Decision made by Patent Reexamination Committee on March 14, 1996, which declared the nullification of No.88109156 invention patent, and has initiated an administrative litigation with Beijing First Intermediate People's Court, Buhler Company Claims: First, the company's No.88109156 invention patent belongs to a high-class flour milling pattern; the purpose of the invention is to develop a new method of flour milling with the high-class flour milling pattern to shorten flour path and increase economic efficiency of the high-class flour milling pattern, and based on this, to initiate a new-type flour-milling machine. Compared with flour path 9-11 set forth in the contrastive document < >, the patent is different from the said flour path 9-11 in the field of invention, purpose of invention, effect of invention and technical solution. Compared with British Patent 6993 also, the twin-mill flour-milling machine of the said invention is not in evidence either. The combination of flour path 9-11 in the contrastive document < > with British Patent 6993 does not refute innovation in Claims 1, 2 and 3 of patent rights. Second, comparison between the flour mill provided in < > and Claim 4 of the patent rights shows that the two are quite different in their structures, and that Claim 4 of the patent rights is innovative, and in the same way, Claims 5-8 are innovative also. Third, the patent, having overcome the technical prejudice of the one-mill-one screen method used in high-class flour milling pattern in the past, had achieved great commercial success, and from this, it can be seen that the invention is innovative. Fourth, the defense, in evaluation innovation, failed to give consideration to the significant progress and commercial success made through the patent, and the fact that the patent had overcome prejudice in this field. Besides, the defense failed to treat the invention in its entirety from the views of the purpose and technological results produced through the invention. Buhler Company hereby requests to annul the invalidation decision No.688 made by the Patent Reexamination Committee.

The defense, Patent Reexamination Committee, argues Buhler Company's assertion that the patent is innovative when compared with existing technology in this field is based on the premise that the technological field of the patent belongs to high-class flour milling pattern. Buhler Company's stress that the invention is different from existing technology in its purpose and effects, and that the invention has overcome technical prejudice is based on the premise that the invention belongs to high-class flour milling pattern. In this case, the technological field to which the invention belongs, should be determined according to technological proposal defined by the claims of the patent; and according to independent claims of the patent and related records in < >, the invention and the existing technology belong to the same technological field. Though this patent can produce many kinds of products at the same time, only one product can be produced through flour path 9-11, and the kind of final product is determined by arrangement of screen path, having nothing to do with the flour path, while the patent does not involve the position of screen path. This deference has no substantive effect on judging the innovation of the patent. Therefore, claim 1 that the patent is not innovative, and all the other claims that the patent belongs to some conventional improvements, which is not innovative. Therefore, claim 1 that the patent is not innovative, and all the other claims that the patent belongs to some conventional improvements, which is not innovative. Therefore, the defense requests to reject Buhler Company's appeal, and that invalidation decision No.688 be upheld.

The third party in the case, Patent Management Department of the Nuclear Industry Corporation, claims: Claims 1-2 of the patent in this case, compared with flour path 9-11, are not innovative, nor does claim 3, which is based on claims 1-2. Claim 4, which describes a piece of equipment, which can mill twice continuously in a roll-type flour milling machine, does not have any prominent substantive features and significant progress, and therefore, it does is not innovative, when compared to British patent 6993. Claims 5-8, which are subordinated to claim 4, have some additional technical features, which are usually necessary to a roller type flour-milling machine, and therefore, they are not innovative either.

Recognized Facts in the initial trial

Beijing First Intermediate People's Court recognized, after hearing the case and investigation, that the plaintiff, Buhler Company, submitted to the China Patent Office its application for invention patent entitled "Grain Flour-milling Method and Equipment" on October 6, 1988.

The China Patent Office gave examination and issue of an approval announcement of the patent application on November 13, 1991 and awarded patent rights under patent number 88109156, on March 4, 1992, Claims of the patent are as follows:

Claim 1: One type of grain flour-milling method which involves milling materials for several times in a roll-type flour-milling machine, followed by screening the milled products through a piece of screening equipment so that grain is made into a fine flour, coarse flour or medium fine flour. The features of the method lie in that, during the said processes, at least in one or two such processes, at least part of the materials are milled continuously during two successive passes in a roll-type flour-milling machine and then screened through a piece of screening equipment.

Claim 2: One method as described in Claim 1, features of which lie in that, during the said processes milled products are screened after only one pass of milling, except those materials which are milled continuously in two successive passes and then screened.

Claim 3: One type of equipment used to implement the method described in Claim 1, which consists of several combined assemblies consisting of flour-milling units and screening units linked to the flour-milling units. The features of the equipment lie in that, among the aid assemblies, at least one or two such assemblies consist of a roll-type flour-milling unit that can mill materials continuously during two successive passes before screening, and a screening unit.

Claim 4: One type of equipment as described in Claim 3, the features of which lie in that, the said roll-type flour-milling unit that can mill materials continuously in two successive passes consists of:

(1) One flour-milling machine shell, space in which is divided by a separator into two symmetric parts, space 1 and space 2; and there is an opening in the top of the shell.

(2) The first feeding device, which is installed in above-mentioned space 1, below the said opening.

(3) The second feeding device, which is installed in above-mentioned space 2, below the said opening.

(4) The first pair of mill rolls, which are installed in space 1, below the said first feeding device, act on each other, and are supported on the same plane by the said shell via bearings, in which the rolls can rotate.

(5) The second pair of mill rolls, which are installed in space 2, below the said second feeding device, act on each other, and supported in the same plane by the said shell via bearings, in which the rolls can rotate.

(6) The third pair of mill rolls, which are installed in space 1, below the said first pair of mill rolls, act on each other, and are supported on the same plane by the said shell via bearings, in which the rolls can rotate. This pair of mill rolls directly receives milled products from the said first pair of mill rolls.

(7) The fourth pair of mill rolls, which are installed in space 2, below the said second pair of mill rolls, act on each other, and are supported on the same plane by the said shell via bearings, in which the rolls can rotate. This pair of mill rolls directly receives milled products from the said second pair of mill rolls.

Claim 5: One type of equipment as described in Claim 4, the features of which lie in that all the said pairs of mill rolls are provided, each with a discharging hopper below them.

Claims 6: One type of equipment as described in Claim 5, the feature of which lie in that all said pairs of mill rolls are equipped each which a separate guard device for preventing foreign material.

Claim 7: One type of equipment as described in Claim 6, the features of which lie in that each pairs of mill rolls to rotate at different speeds.

Claim 8: One type of equipment as shown in Claim 6, the features of which lie in that each said pair of rolls is equipped with rolling distance adjusting mechanism.

On November 3, 1993, the Patents Management Department of the Nuclear Industry Corporation raised a request to the Patents Reexamination Committee for announcement of the nullification of the invention patent of the plaintiff. During the Patents Reexamination Committee's examination, on August 8, 1995, Huahe Company also put forth request for announcement of the nullification of the invention patent of the plaintiff. The Patents Reexamination Committee examined the two cases as a combined one. During examination of the request for announcement of the nullification of the invention patent, both nullification announcement requesting parties provided the following contrastive documents:

Among the patent claims in the patent application of the patentee for being awarded patent right, Claim 1 for method and Claim 2 for equipment are the main claims, which the two nullification announcement requesting parties do not believe to have any originality according to the provided contrastive document 6, i.e. < > and contrastive document 9, i.e. British patent No.6993. Thereby, the patentee revised the scope of his patent claims according to patent specifications during the Patent Reexamination Committee's oral examination of the patent claims. The revised patent claims involved the original main claim 1 and claim 3. The revised patent claims have the following contents:

Claim 1: One type of grain four-milling method, which involves milling materials several times in a roll-type flour-milling machine, followed by screening the milled products through

Claim 1: One type of grain flour-milling method, which involves milling materials several times in a roll-type flour-milling machine, followed by screening the milled products through a piece of screening equipment so that grain is made into fine flour, coarse flour or medium fine flour. The features of the method lie in that, during the said processes, at least in one or two such processes, at least part of the materials are milled continuously in two successive passes in a roll-type flour-milling machine and then screened through a piece of screening equipment.

Claim 2: One type of equipment used to implement the method described in Claim 1, which consists of several flour milling units consisting of flour-milling device and screening device linked to but independent of the flour-milling unit. The features of the equipment lie in that, among the several said flour-milling units, at least one or two such units consist of a roll-type screening and a screening device.

The requesting parties of the nullification announcement have no objections to the legitimacy of the revisions, but still do not believe the revised claims to have any originality or innovation. On March 14, 1996, the Patent Reexamination Committee, based on the above revised claims, gave its No. 688 examination decision to announce the nullification of patent No.88109156. The Patent Reexamination Committee has affirmed the following facts:

1. The invention belongs to the same flour-milling technological field as the 9-11 flour path in contrastive document 6 does, i.e. the flour path shown in contrastive document 6 is the same grain flour milling method, a process that includes milling materials for several times in a roll-type milling machine, followed by screening milled products through screening equipment, to produce graded flour or standard flour.

2. The key point of the invention is characterized by two mills and one screen, while in the 9-11 flour path, wheat is also milled for two times before being screened.

3. What is different is that the 9-11 flour path is a flour path while the method described in Claim 1 is implemented in a machine.

4. In the machine made public in contrastive document 9, two pairs of rolls, which belong to different milling processes respectively, have been arranged in the same machine though there is a small internal screen between the two pairs of rolls.

Based on facts 1 and 2, and according to relevant regulations of Article 22 of the Patent Law, Claim 1 of patent No.88109156 is affirmed to have originality; based on facts 3 and 4, Claim 1 of patent is affirmed to have no innovation, the reasons for being the 9-11 flour path, as a process, gives inspiration of a type of equipment, which can continuously mill materials during two successive passes and consequently omit screening process in between; contrastive document 9, as equipment, also gives inspiration of carrying out two processes without in-between screening equipment by one milling machine.

Because the equipment described in Claim 3 is another form of expression of the method patent have no innovation either.

According to relevant facts and regulations in Article 22 of the Patent Law, the Patent Reexamination Committee has affirmed that the specific structural features of the flour-milling machine given in Claim 4, which is subordinated to Claim 3, were designed under inspiration given by existing technology that no intermediate screen equipment is provided between two mills, and also in combination with selection of conventional technology in this technological field that single and double mill rolls are arranged in horizontal and slope manners, and therefore, they are not innovative. Claims 5 and 6 are subordinate claims to Claim 4, their features belong to conventional design made by ordinary technical workers, and therefore, are not innovative.

The Judgment and Related Grounds of the initial trial

Beijing First Intermediate People's Court maintains, after examination, that the patent disputed in this case belongs to the same technological field as the 9-11 flour path described the contrastive document 6 does. According to descriptions in the specifications of the patent involved in this case, horizontal mill pattern involves twice or more times milling and produces full flour, and high-class milling method involves grain shelling followed by once or more times milling for standard or graded flour, while the 9-11 flour path gives standard flour too, therefore the Patent Reexamination Committee conforms that the affirmation that the two methods, i.e. the patent disputed in this case and the 9-11 flour path, belong to the same technological field is correct. The patent disputed in this case and the 9-11 flour path have the same purpose of invention, the patent involved in this case adopts two mills and one screen arrangement, which has technical features of shortening flour path, and the 9-11 path arrangement is also of two mills and one screen with the same technical features of shortening flour path, therefore the Patent Reexamination Committee affirms that both of them have the same purpose of invention. There is no difference in technical solution between the patent disputed in this case and the 9-11 path arrangement. If the arrangement of two mills and one screen in the 9-11 flour path can result in over-milling, the patent disputed in this case may do the same. Therefore, the Patent Reexamination Committee affirms that the both of them have the same technical solution. In the patent disputed in this case, only the effects of partially saving milling, screening and transferring equipment are supported by the specifications of the patent, but the effects of how to obtain as many kinds of different products as possible from different parts of grain and then to make up different kinds of flour meeting different requirements according to different demands are not supported by the specifications of the patent. Evaluation of innovation must be based on technological features of technical solution made public in patent specifications. It is difficult to see from the specifications of the patent disputed in this case how the technological solution of the patent obtains as many kinds of flour from different parts of grain, then makes up different kinds of flour meeting different requirements and at same time guarantees flour quality. In consideration of the facts that 9-11 flour path, as a process, gives inspiration of forming equipment that can mill continuously in two successive passes without intermediate screening, and that the contrastive document gives inspiration of realizing in one mill the process of two pieces of equipment without intermediate screening, Claims 1-8 of the patent disputed in this case fail to meet requirement on innovation of invention patent. The Patent Reexamination Committee, based on the contrastive documents 6 and 9, made No. 688 decision on nullification of the invention patent right. The body content of the decision is correct and examination procedures conform with law. According to regulations of sections 2 and 3 of Article 22 of < > and section 1 of Article 54 of < >, the judgement is made that No.688 decision on nullification of the invention patent made by the Patent Reexamination Committee be maintained.

Grounds of Appeal and Defense

Buhler Company still refused to accept the decision on nullification and has initiated an administrative prosecution to Beijing First Intermediate People's Court. Buhler Company cams in its prosecution: First, the 9-11 flour path is for producing one single kind of standard flour while this patent is a technology used in flour path for producing several kinds of flour at the same time. Therefore, the 9-11 flour path and this patent belong to two different technological fields. Though both the 9-11 flour path and this patent belong to the flour milling field macroscopically, on the other hand, they belong to different technological fields in terms of their production purposes. Second, the purpose of this patent is different from that of the 9-11 flour path. The 9-11 flour path is a further simplified and shortened flour path of shorter path for milling one single kind of flour product while the purpose of this patent is to shorten the longer flour path for milling several kinds of flour products at the same time. Though to shorten flour path is their common purpose, their premises, objects to which they are used respectively, and occasions on which they are used are quite different. Third, in British patent 6993, one slide screen is provided between two pairs of mill rolls, which is an arrangement of one set of mills with one screen, while this patent is an arrangement of two mills with one screen. There is no basis on which a comparison can be made between British patent and this patent. Fourth, it is clearly expressed that the 9-11 flour path is one, which produces only standard flour, but no words are given about possibility for the 9-11 flour path to mill other kinds of flour, implying this flour path is not suitable for milling other kinds of flour. This patent shortens the flour path by means of an arrangement of two mills with one screen, on the premise of ensuring production of several kinds of flour at the same time without lowering quality. It belongs to a technological field different from that to which the 9-11 flour path belongs. The 9-11 flour path mills only one single kind of standard flour. What the 9-11 flour path inspires to do is to increase flour yield. The arrangement of two mills with one screen of the 9-11 flour path has significance of inspiration only in the technological field, to which it belongs. It does not have any significance of inspiration to other flour paths, nor to this patent, because problems the two solve are different, and so are technological effects resulted in by the two.

Based on the above, Buhler Company requests the appeal Court to recall the judgement of the initial trial and nullification decision No.688 according to facts and law, and that this patent be maintained.

The Patent Reexamination Committee accepts the original judgement and requests the appeal Court to reject the appeal and maintain the original judgement. The Patent Management Department of the Nuclear Industry Corporation and Huahe Company accept the judgement of the initial trial.

Recognized Facts in the Appeal

One the basis of the recognized facts in the initial trial, Beijing Higher People's Court separately identified that Buhler Company submitted to the China Patent Office, on October 6, 1988, its application for the invention patent entitled "Flour Milling Method and Milling Units", patent application number 88109156. This patent application was made public on August 30, 1989, and claims made public are as follows:

Claim 1: One grain milling method, in which, by milling many times with mill rolls and screening given milled products, grain products such as fine flour, coarse flour and medium fine flour (flour between fine flour and coarse flour) can be produced. The features of the method lie in that some (at least part of) the milled grain products only pass the double-milling channel (1) for milling without passing through an intermediate screening process.

Claim 2: One grain processing method conforming with Claim 1, and its features lie in that grain products are milled through a combined unit consisting of one double-milling channel (1) and one single milling channel.

Claim 3: One grain processing method conforming with Claims 1 and 2, and its features lie in that grain products are screened after each kind of milling channels (double-milling or single-milling channel).

Claim 4: One grain processing method conforming with any one of the above claims, and its features lie in that grain products are milled through at least two groups of double-milling channels (1), for example, B1/B2 with C1/C2 and/or B1/B2 with B3/B4 and/or C1/C2 with C3/C4.

Claim 5: Mill roll structure used for milling grain four such as fine flour, coarse flour and medium fine flour, and its features lie in that a two-combined-into-one (Claims 2 and 3) 8-roll structure, in which every two pairs of rolls are closely combined, is formed.

Claim 6: One mill roll structure conforming with Claim 5, the features of which lie in that a milled product discharging funnel (16) is provided below each pair of mill rolls.

Claim 7: One mill roll structure conforming with Claim 5 or 6, the features of which lie in that each pair of rolls are equipped with a perfect and unique adjusting device (17), separating device and foreign materials prevention safety device, and each pair of mill rolls are equipped with a driving mechanism which enable every pair of rolls (4, 5, 4', 5', 7, 8, 7', 8') to have different rotating speed.

Claim 8: One mill roll structure conforming with Claims 5 through 7, the features of which lie in that each pair of rolls (4, 5, 4', 5', 7, 8, 7', 8') are arranged on the same level.

Claim 9: One mill roll structure conforming with Claims 5 through 8, the features of which lie in that each pair of rolls are interchangeable.

Claim 10: One mill roll structure conforming with Claims 6 through 9, the features of which lie in that the suction pipe of the feeding device (13) is linked with a milled products discharging funnel (16).

Claim 11: One grain flour-milling unit conforming with the flour milling method of Claim 1, the features of which lie in that at least one double-milling channel does not need a screening separator that is controlled by a switch.

Claim 12: One grain flour-milling unit conforming with Claim 11, the features of which lie in that a double-milling channel (1) and a single-milling channel form a combined unit.

Claim 13: One grain flour-milling unit conforming with Claim 11 or 12, the features of which lie in that each milling channel (double one (1) or single one) is directly provided with a separator.

Claim 14: One grain flour milling unit conforming with Claims 11 through 13, the features of which lie in that a 4-roll structure and a 8-roll structure (1), conforming with claims 5 through which lie in that a 4-roll structure and a 8-roll structure (1), conforming with claims 5 through 10, together form a combined unit.

Claim 15: One grain flour-milling unit conforming with Claim 14, the features of which lie in that each pair of mill rolls in the 4-roll structure and 8-roll (1) structure has a rolling distance adjusting device (17), and each milling channel is provided with a sampling port.

Claim 16: One grain flour milling unit conforming with Claims 11 through 15, the features of which lie in that above each pair of rolls in the upper part of each 8-roll structure (1), feeding adjusting devices (10 through 12) are arranged, and below each pair of such rolls, funnel-type feeding channels are arranged to feed materials directly to next layer of roll combination below. Claim 17: One grain flour milling unit conforming with Claims 11 through 16, the features of which lie in that feeding hoppers of upper and lower roll pairs are connected via piping (14) to a ventilating duct.

The Patent Reexamination Committee, taking < > published by China Financial Economic Publishing House in 1965 and British No.6933 patent approved in 1909, provided by Patents Management Department of the Nuclear Industry Corporation and Huahe Company, as contrastive documents examined the innovation of revised claims 1 though 8 of Buhler Company's patent. The 9-11 flour path in < > involves a process flow of milling standard flour, technological contents revealed by which include: The flour milling process includes a number of passes of milling and screening; first shelling and second shelling are two successive processes of continuous milling without in-between screening; the two successive passes of continuous milling take place in two roll-type milling machines. The British No. 6993 patent involves product treatment in flour milling, the purpose of which is to produce, by means of combining mill rolls and screens, flour products better in quality than those produced before; technological contents revealed by British No. 6993 patent include: one 8-roll flour milling machine, the structure of which may be regarded as a combination of two 4-roll flour milling machines arranged on the right and left; a feeding device is which is arranged below the top of the machine shell inside the machine shell; the relative position between the two pairs of rolls takes a diagonal arrangement; each pair of rolls are arranged in a slope manner; guide plate (material guiding chute), slope screen, feeding plate and other attachments are arranged between the two pairs of mill rolls.

The Judgement and Related Grounds of the appeal

Beijing Higher People's Court, after examination, affirms that the disputed focus lies in whether patent 8810156 is innovative as specified in the Patent Law of China. Innovation in terms of patent law means that the invention has outstanding and substantive features and significant progress when compared with existing technology of its kind before the date on which application of the patent right of the invention was made.

The technological field is a key factor in judging whether two technologies are related with each other, and an important basis for judging innovation. According to practice in patent examination in China, technological fields are determined according to international patent classification, according to which, the technological solution revealed by patent 88109156 and that by the 9-11 flour path both belong to B02C4/06, i.e. a technological field, in which, roll-type milling machines are used to for grain milling. The Patent Reexamination Committee's No.688 decision on nullification, which identified that patent 88109156 and 9-11 flour path belong to the same technological field, is correct.

Differences between Claim 1 of patent 88109156 and the 9-11 flour path are as follows: (1) Claim 1 defines a number of successive passes of continuous milling to at least one or two while there is only one such pass according to the 9-11 flour path. (2) Claim 1 of the patent is method for producing fine flour, coarse flour and medium fine flour while the 9-11 flour path is a process flow of producing standard flour. (3) In Claim 1, at least one or two successive passes of continuous milling take place in one roll milling machine, while the 9-11 flour path odes nor specify that two successive passes of continuous milling must take place in one flour milling machine. The purpose of the patent in this case is to shorten existing flour milling path on the premise of guaranteeing conformity of product quality with existing flour quality specifications. Therefore, whether one or two, or more successive passes of continuous milling take place, the final technological effect lies in shortened flour path, difference in number of successive passes of continuous milling result in only amount, by which the flour path is shortened, but no other substantive difference. Though kinds of flour produced by means of this patent in this case are different from that produced by means of the 9-11 flour path, technological effects to be realized by means of two successive passes of continuous milling lie only in shortened flour path. No matter what the final products are coarse, medium fine or fine flour, or standard flour, it does not have any effect on the shortening of the flour path. The above three differences form a difference in nature because arranging two successive passes of continuous milling in one flour milling machine does not mean a simple accommodation and superposition, but rather installation of facilities in one machine shell, which can guarantee two successive passes of continuous milling in one flour milling machine in reasonable and normal operation. The essentials of the invention of this patent are embodied by not only two successive passes of continuous milling defined within one flour-milling machine but also technological means of how to guarantee conformity of products with existing quality standards. Under the technological condition of two mills with one screen, the key for realizing two successive passes of continuous milling is how to guarantee product quality not to be lowered, but no description about this is seen in the text describing the features of Claim 1 of the patent. Its technological features of two successive passes of continuous milling defined within one roll-type flour milling machine are described only in the text for discriminating features. Without support provided by necessary technological means to guarantee arrangement of two successive passes of continuous milling taking place within one flour milling machine in reasonable operation, two successive passes of continuous milling can only be viewed as a technical task, which is easily seen by ordinary technical workers in this field. Furthermore, the British 6993 patent has already made public the technology of arranging two successive passes of continuous milling without an intermediate screen within one flour milling machine. The action of the small screen arranged in a slope position and units related with the slope screen do not lie in the collection of flour, but in making use of flour-clearing action of the small screen to carry out material distribution to the next pair of rolls so that fully reasonable operation of the next pair of rolls can be guaranteed. The said small screen is fundamentally different from what ordinary technical workers in this field believe the concept of "two mills with one screen" to be. The ordinary concept of one mill with one screen usually means screening process has been omitted in the 8-roll flour-milling machine of the British 6993 patent. Such 8-roll flour-milling machine is concerned with the technology of one mill with one screen, in which, two successive passes of continuous milling have been reflected between two pairs of rolls. The feature of "two successive passes of continuous milling within one roll-type flour-milling machine" described in Claim 1 has been revealed in British 6993 patent. Claim 1 does contain any innovation.

The 9-11 flour path has already revealed that, except first shelling and second shelling, which belong to two successive passes of continuous milling, in all other processes, milled products are screened after each milling process, therefore, Claim 2 does not contain any innovation either. The technological solution defined in Claim 3 is a flour milling system applicable to the method of Claim 1, its substantive contents are completely similar to those included in Claim 1, so it does contain any innovation either.

Comparison between Claim 4 and 8-roll flour-milling machine made public in patent 6993 shows that, though patent 6993 does not indicate expressively flour path shortening, the effect of the technology of flour path shortening is objective and easily seen, patent 6993 has already fulfilled the technological task of shortening flour path while flour quality is increased, and technological means used in patent 6993 omit one screening process between two milling processes and arranging two successive passes of continuous milling within one flour milling machine as the patent in this case does. What is different lies in: (1) in patent 6993, one intermediate screen is arranged between two successive passes of continuous milling; (2) in patent 6993,each pair of rolls are arranged in a slope position while in Claim 4 they are in a horizontal position; roll arrangement method belongs to a conventional selection, which does not have substantive difference as far as realizing shortened flour path the purpose of the invention is concerned. Technological features defined by Claim 4 had been revealed by patent 6993. So Claim 4 does not have innovation.

Claims 5 through 8, based on Claim 4, have some additional structural features that flour milling machines must have. These features are conventional structure design and therefore Claims 5 through 8 are not innovative.

Technological effects come from technological solution and means, but in the text for patent examination and patent right authorization, only technological task of two mills with one screen is given while nothing is mentioned about technological means to guarantee that product quality will not be lowered. Therefore, technological effects and commercial success of the patent claimed by the petitioner Buhler Company are not accepted. The assertion by the petitioner, Buhler Company, about patent 88109156 overcoming technological prejudice can not be recognized. Based on the above, the Patent Reexamination Committee's No.688 decision on nullification of the invention patent right and Beijing 1st Intermediate People's Court's (1996) FIKO No. 53 administrative judgement, in which, identification of facts and law used are correct, and examination procedures conform with laws, should be maintained. Grounds of appeal of Buhler Company can not be recognized, and this court does not give support to them. Based on the above, and according to regulations of item (1) of Article 61 of < >, the following judgement is decided:

The appeal be rejected, and the original judgement maintained.

Comment:

This case mainly involves the following three problems:

I. How to understand "the same technological field" in the practice of patent judgement.

When judging originality and innovation, related contrastive documents should be quoted, and technological field is an important factor in judging whether two technologies are related with each other, and also an important basis for judging innovation. In practice, dispute between the parties concerned about the selection of contrastive documents often occurs, affirming one certain contrastive document not belong to the same technological field as the disputed patent does, and consequently it should not be used as contrastive document in the case. The guide for examination of Patents of the China Patent Bureau defines that technological field should be one, to which an invention or applied new type belongs, or in which the invention or applied new type is directly used, but neither an upper position or adjacent technological field, not the invention or the applied new type itself. The specific technological held is often related to the lowest position, into which the invention or applied new type may be classified in < >. In this case, Buhler Company affirms that its No. 88109156 patent belongs to high-class flour milling method while the 9-11 flour path to low-class flour milling method (horizontal mill), therefore, the two belong to different technological fields, thus the 9-11 flour path can not be used as contrastive document at all. In flour milling field, and objective fact that mills are classified into high mills and low mills (horizontal) does exist. But according to the practice of patent examination in China, technological field and subjects of invention are classified according to international patent classification number, thus patent 88109156 and the flour path both fall in BO2C4/06, i.e. technological field of milling grain with applied roll-type milling machines. Thus the No. 688 decision on nullification, which affirms both of them belong to the same technological field, is correct.

II. In the practice of patent judgement, how to understand overcoming technological prejudice.

Technological prejudice means prejudice technical personnel in a certain technological field generally have against some certain technological problem. Such prejudice may lead people not to consider possibilities in other aspects and prevents people from researching into and developing this technological field. In patent reexamination and any administrative dispute about the nullification of patents, the concerned party often nullification of patents, the concerned party often blindly argues that its patent technology has overcome technological prejudice and is innovative, but fails to indicate specific technological means or an authoritative document that can prove the technological effect of its patent. Technological prejudice has reasons and background for its formation, and to overcome it, the following should be accomplished: (1) there does exist technological prejudice, i.e. technical personnel in this technological field generally have a tendentious view; (2) Specific technological means to solve technological problems and overcome technological prejudice should be given; in this case, Buhler Company affirms that its patent technological solution has overcome technological prejudice, failed to say what the prejudice is, how the prejudice has been overcome, and no corresponding evidence was submitted, thus Buhler Company's above affirmation can not be recognized.

III. Why does Buhler Company's 88109156 patent invention is to shorten flour path on the premise of guaranteeing flour quality. Its substantive difference from the 9-11 flour path lies in that the patent defines two successive passes of continuous milling to take place in two or more mills. Though the patent presents combining two successive passes of continuous milling into one mill, no word is given about how to guarantee that flour quality would not be lowered on this process condition. That is what the crucial point of this case lies in, but check of the application for the patent right examination and approval shows that nothing about that was made public. The flour milling industry generally believes that the concept of incorporating two successive passes of continuous milling within one mill is not difficult, but what is difficult is how to keep the system in normal operation of this condition without lowering product quality because incorporating two successive passes of continuous milling into one mill may bring a series of problems. Therefore, it is easy for any ordinary technical personnel to present a concept of technological task or concept of the patent solution, and it does not need teaching and inspiration from the two contrastive documents. Furthermore, the British patent 6993 has in fact made public the technological solution for incorporating two successive passes of continuous milling into one mill.