With regard to whether the patent products involved in the case have achieved commercial success, the Supreme People's Court held that when it is difficult to judge the inventiveness of the technical solution by adopting the "Three-Step Method" or it is concluded that the technical solution doesn't have inventiveness by adopting the "Three-Step Method", the commercial success should be included in the consideration factors of the inventiveness judgment from the perspective of the social and economic incentives. When the applicant or patentee claims that the invention or utility model has achieved commercial success, it shall examine that 1) whether the technical solution of the invention or utility model has actually achieved commercial success; 2) whether the commercial success stems from the improved technical features in the technical solution of the invention or utility model compared with the prior art, rather than the other technical features other than the improved technical features.
It is difficult to show that the claims of the invention or utility model have inventiveness through commercial success, and there are many difficulties in practical operation, however, with the development of domestic economy and the trend of global integration, the number of cases that argue that the claims of the invention or utility model have inventiveness through commercial success is likely to increase in the future.
For patent applicants or patentees, they need to take the initiative to provide evidence, that is, starting from two points: "it is enough to prove that the technical solutions of the invention or utility model have achieved commercial success" and "the commercial success is directly caused by the distinguishing technical features of the invention compared with the prior art". As for the first point, it is necessary to provide sufficient notarized evidence to prove "commercial success", for example sale-type evidence materials (such as the data of total sales, product sales contracts, invoices, the bills of lading and the vouchers of import and export), publicity-type evidence materials (such as records of media advertisements and media comments on products, participating in exhibitions and expositions), use-and-protection-type evidence materials (such as the earliest use time and continuous use situation of the product and the relevant information about the infringement involved in the product), so as to prove the market share, sales area and time span of the products, or the generally expected sales results of the market as much as possible; As for the second point, it is necessary to provide evidence materials indicating that "commercial success" is related to "distinguishing technical features", that is, it is necessary to provide evidence to show that the invention has "commercial success" in the sense of patent law, for example, to provide relevant comparative data to compare sales volume of prior art products with that of products involved in the invention, changes of sales volume of prior art products before and after the products involved in the invention are put on the market, etc.
For the opposite party such as the invalidation petitioner, if he/she/it wants to refute the above argument, it should be proved that the inventor's commercial success is caused by external factors such as advertising, excellent sales technology, or the common technical features shared by the prior art products and the products involved in the invention rather than distinguishing technical features.
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