Common knowledge based commentary defense skills, from thinking to writing optimization

2026/5/25 12:08:30

In the process of patent examination, the response to patent examination opinions (OA response) is like a crucial battle, and common sense comments are the frequently appearing "strong enemies" in this battle. Examiners often use the phrase 'distinguishing technical features is a common practice/common knowledge in this field' as a powerful weapon to challenge the creativity of inventions and attempt to negate their value. This type of commentary may seem concise and direct, as if it is a final decision, but in reality, it is difficult to falsify it, and precise control of the defense logic is particularly crucial.

This article will combine practical experience and share defense techniques for common knowledge comments from four important dimensions: current situation analysis, debate ideas, case decomposition, and writing optimization. It will help patent applicants improve their response success rate and successfully defend the creativity of their inventions when facing such comments.

The Practical Status of Common Knowledge Commentary

1. The definition boundary of common knowledge is vague

In the system of patent examination rules, the examination guidelines do not provide a clear and explicit textual definition for "common knowledge". It is only supplemented by examples, for example, when distinguishing technical features is a common means of solving technical problems in this field, or when technical means are disclosed in authoritative reference books such as textbooks, technical dictionaries, technical manuals, etc., it can be recognized as common knowledge. Although this definition provides some reference to a certain extent, it also blurs the boundaries of common knowledge, which can easily lead to different understandings and controversies in the actual examination and defense process.

2. Common issues regarding review opinions

In practical operations, the common sense comments given by examiners often exhibit a significant feature of "conclusion oriented". Specifically manifested as:

Merely stating that 'distinguishing technical features belongs to common knowledge/customary means', but failing to provide substantial basis for the feature to be widely known by the public. This is like giving only one judgment result without showing the reasoning process and evidence support that led to this result, making it difficult to convince people.

The identification process has a strong subjective color and lacks rigorous logical reasoning. When reviewing, examiners often make judgments based on their own professional knowledge and experience, but this judgment may be influenced by personal cognition and thinking habits, resulting in less objective and fair evaluation results.

The threshold for claiming that a certain feature belongs to common knowledge is relatively low, but the agent faces great difficulty in falsifying this determination. This creates an unequal situation, placing the applicant in a relatively passive position during the defense.

3. The core pain points of the defense

If the debate directly revolves around whether the distinguishing features are common knowledge during the defense process, it often falls into a dilemma and it is difficult to form an effective rebuttal. This is because creative judgment itself has a certain degree of subjectivity, and the reviewer's comments are mostly based on logical deductions that are easy for technical personnel in this field to come up with. This deduction lacks a clear evidence target, like shooting in the dark without a specific target, making it difficult to accurately apply force in the defense. Therefore, the defense needs to break out of the controversy vortex of a single feature and return to the core logic of creative judgment.

The Debate Approach of Common Sense Commentary: Returning to the Three Step Method and Breaking Through Logical Vulnerabilities

The "three-step method" of creative judgment (determining the closest existing technology → identifying distinguishing technical features and determining the actual solved technical problem → determining obviousness) is the core framework for reducing subjective bias in patent examination. The debate over common sense comments is essentially about dismantling the three-step reasoning chain, carefully searching for logical inconsistencies in the review opinions, and then denying the validity of the comments.

1. Key controversial links in the three-step method

The rationality of the review opinion directly depends on the derivation of the following three core links, which are also the main breakthrough points of the debate:

The closest identification to existing technology: The closest identification to existing technology is usually compared to Document 1, and the accuracy of its identification is crucial. It is necessary to confirm whether the disclosed technical content provides a solid and reliable foundation for subsequent defense. If there is a deviation in the identification of the closest existing technology, subsequent reasoning and evaluation may be based on errors.

The determination of distinguishing technical features: The accuracy of the examiner's summary and comparison of distinguishing technical features directly affects subsequent judgments. It is necessary to carefully verify whether there is any deviation in the reviewer's summary of features and whether the comparison is comprehensive and accurate. Sometimes, examiners may make inappropriate generalizations of features, resulting in inaccurate judgments of distinguishing features and affecting the overall creative judgment.

The redefinition of the technical problem actually solved: Whether existing technology (compared to Document 2 or common knowledge) can provide effective inspiration for solving the problem is one of the key factors in judging creativity. It is necessary to reasonably reconfirm the actual technical problems to be solved and analyze whether existing technologies can provide effective solutions. If the examiner determines that the technical problem actually solved is unreasonable, or if the existing technology cannot provide effective inspiration, then their evaluation of creativity may not be valid.

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2. Debate entry points for two typical types of comments

Common knowledge type comments usually appear in two-step key comparisons, and targeted vulnerability searches are needed for different situations.

Comparison stage of technical features between Document 1 and the present application

The core task of this stage is to determine the distinguishing technical features and the actual technical problems to be solved. When arguing, it is necessary to focus on verifying:

Is the examiner's claim of "comparing the technical insights provided by Document 1" completely consistent with the original content of Document 1. If the examiner's interpretation of existing technology is biased, such as taking out of context, excessive extension, etc., then the public knowledge evaluation based on such erroneous interpretation naturally cannot be established. Because incorrect interpretation can lead to inaccurate understanding of existing technology, resulting in incorrect conclusions.

Comparison stage of distinguishing technical features from comparative documents 2/common knowledge

The core of this stage is to determine whether the existing technology can inspire technical personnel in this field to adopt the distinguishing feature. When arguing, it is necessary to pay attention to the following aspects:

Is the technical content of File 2 substantially related to the distinguishing technical features. Sometimes, examiners may identify non identical technical content as providing inspiration, which requires us to carefully analyze the differences between the two and determine whether there is such an erroneous identification.

Does the combination of File 1 and File 2 have a logical foundation. Even if the two can be combined, further analysis is needed to determine whether the combination can achieve the technical effect of the present application. If the combination fails to achieve the technical effect of the present application, there may be issues with the examiner's evaluation of creativity.

Is the reviewer's summary of technical features appropriate. Is there a problem of "fuzzy technical boundaries in higher-level generalization", such as summarizing specific technical solutions as general concepts, resulting in inaccurate identification of distinguishing features. This inappropriate generalization will expand the coverage of existing technology, leading to the mistaken belief that distinguishing technical features is common knowledge.

Practical Case: Decomposing the Defense Logic of Common Knowledge Commentary

In order to better understand the above argument, the following practical cases in the petroleum industry will be used to illustrate how to implement it in practice.

1. Existing technical issues

In the field of petroleum exploration, shear wave data and longitudinal wave data generate velocity spectra in their respective temporal and spatial domains. However, longitudinal waves propagate at a fast speed and have a short arrival time, while transverse waves propagate at a slower speed and take longer, resulting in a temporal mismatch between the two types of data corresponding to the same formation. This mismatch ultimately leads to low sampling density and poor recognition of the generated velocity spectrum, which poses great difficulties for oil exploration work.

2. Core solution of the present invention

Earthquake data is recorded in units of seismic traces, with trace length=sampling interval x sample points. The present invention adjusts the time scale of the transverse wave data and longitudinal wave data by changing the sampling interval value in the seismic data recording head, thereby adjusting the time scale of the two, matching the time domain, and ultimately improving the accuracy of the velocity spectrum.

3. Core review comments

File 1 only solves the problem of mutual interference between transverse and longitudinal wave data acquisition, and does not disclose the technical solution of "adjusting acquisition parameters", which belongs to the background technology.

Compared to Document 2, which discloses the technical feature of "defining the head of seismic traces before corresponding use", the examiner believes that this provides inspiration for technical personnel in this field to achieve pseudo sampling by changing the sampling interval in the head.

Conclusion: Based on the comparison of Document 1, combined with Document 2 and common knowledge in this field, the technical solution of Claim 1 is obvious to those skilled in the art.

4. Key breakthrough points for defense

By carefully comparing the technical features, it was found that there is a core issue of "superior generalization bias" in the review opinions:

The actual content of File 2 only discloses the structured description method of seismic data and clarifies the definition of seismic trace header fields. Its core function is to improve data query efficiency, and it does not involve the technical inspiration of "changing the specific values of trace header fields".

The reviewer has a logical loophole, summarizing the specific scheme of "defining the track head" in comparative document 2 as "customizing the track head can adjust the sampling interval", ignoring the core logic of "changing the sampling interval to achieve pseudo sampling" that is not publicly disclosed in comparative document 2.

Based on the above analysis, a rebuttal conclusion can be drawn: the comparative document 2 cannot provide technical inspiration for "adjusting the sampling interval to solve the time-domain matching problem", and the examiner's comment that "distinguishing technical features belongs to common knowledge" is not valid.

Optimization suggestions for the writing stage: laying the groundwork for the defense in advance

In order to achieve "evidence-based and reasonable evidence" in the response stage, it is necessary to optimize the content in advance according to the examination logic and build defense advantages when writing patent application documents.

1. Improve the logical closed loop of technical implementation

In the manual, the complete chain of "technical problems → defect analysis → scheme derivation → technical effects" should be clearly presented:

Provide a detailed explanation of the root cause of the technical issue to avoid simply describing the phenomenon. Only by deeply understanding the root cause of the problem can targeted solutions be proposed.

Disassemble the design concept of the solution and explain why this technical approach was chosen over other commonly used methods. This can demonstrate the uniqueness and innovation of the invention, making the examiner understand that the solution is not an obvious choice.

Clarify the causal relationship between the plan and the technical effect to enhance persuasiveness. Through clear logical reasoning, it is proven that this solution can effectively solve technical problems and achieve the expected technical results.

2. Supplement relevant existing technology and common knowledge explanations

Targeted disclosure of common knowledge or existing technology related to the core invention points, clarifying their deficiencies. This can enable the examiner to better understand the technical background of the invention and the advantages of the invention over existing technology.

Explain the reasons why it is difficult to combine multiple common knowledge in existing technology, such as conflicting technical concepts and compatibility issues. This can prove that inventions are not simply a combination of existing technologies, but rather innovative breakthroughs.

If there are technical barriers to overcome existing technological deficiencies, it is necessary to elaborate on the specific manifestations of these barriers and highlight the non obviousness of the invention. This can help the examiner recognize the value and level of innovation of the invention.

3. Accurately define the scope of protection for technical features

In the claims and specification, it is necessary to avoid vague expressions of technical features and clarify their specific connotations and application scenarios:

For the core distinguishing technical features, describe in detail their structure, function, and connection relationship with other features. This can prevent examiners from making inappropriate interpretations and expanding their understanding of technical features during the review process.

Avoid overly exaggerated statements and prevent examiners from expanding the coverage of existing technology when commenting. Overexpression of superiority can blur the boundaries of technical features, making it easy for examiners to believe that existing technology already includes that feature, thereby negating the creativity of the invention.

The core of the defense of common knowledge commentary is not to directly deny whether a certain feature is common knowledge. But it is necessary to return to the three-step method of creative judgment, accurately identify the logical loopholes in the review opinions, such as existing technical interpretation deviations, improper feature summarization, and lack of basis for technical inspiration. At the same time, by optimizing in advance during the writing stage and building a complete technical logic chain, it can provide solid and powerful support for the defense, helping patent applicants win the battle of patent examination.