How to bring a patent application back to life

1. How to invalidate a patent:

Where a claimant for invalidation of a patent right requests a declaration of invalidation or partial invalidation of a patent right, he or she shall submit a request for invalidation of the patent to the Patent Reexamination Board, explaining the reasons and, if necessary, attaching relevant supporting documents and explaining the facts on which it is based. The request for invalidation and relevant documents shall be made in duplicate. Before the Patent Reexamination Board makes a decision on the request for invalidation, the person requesting invalidation may withdraw the request.

2. Whether the patent invalidation can be terminated:

Second, for a patent infringement lawsuit, the defendant shall issue a search report made by the patent administration department at the time of filing the lawsuit, and if it files a request for invalidation of the plaintiff's patent right within the defense period, it may request the people's court to suspend the trial of the infringement lawsuit.

Third, in a patent infringement case, if the defendant files a request for invalidation of the plaintiff's patent right within the defense period, it may request the people's court to suspend the infringement lawsuit.

Fourth, in a case of infringement of a utility model or design patent accepted by a people's court, if the defendant requests that the patent right be declared invalid within the period of defense, the people's court shall suspend the litigation, but in any of the following circumstances, the litigation may not be suspended;

1) The search report issued by the plaintiff does not find technical documents that cause the loss of novelty or inventiveness of the utility model patent;

2) The evidence provided by the defendant is sufficient to prove that the technology used by the defendant is already known;

3) The evidence or grounds provided by the defendant requesting the invalidation of the patent right are obviously insufficient;

4) Other situations where the people's court finds that litigation should not be suspended.

Fifth, in a case of infringement of a utility model or design patent accepted by a people's court, where the defendant requests that the patent right be declared invalid after the expiration of the defense period, the people's court will generally not suspend the litigation, unless it is deemed necessary to suspend the litigation after examination.

Sixth, in a case of a dispute over infringement of a utility model or design patent right that has been upheld by the Patent Reexamination Board, if the defendant requests that the patent right be declared invalid within the period of defense, the people's court may not suspend the litigation.

Hello, patent invalidation refers to the system whereby any unit or individual who believes that the grant of the patent right does not comply with the provisions of the Patent Law from the date of the announcement of the grant of the patent right by the State Intellectual Property Office may request the Patent Reexamination Board to declare the patent right invalid. In patent invalidation proceedings, the burden of proof is on the petitioner. According to Article 66 of the Detailed Rules for the Implementation of the Patent Law, after the Patent Reexamination Board accepts the request for invalidation, the applicant may add reasons or supplementary evidence within one month from the date of filing the request for invalidation.

If the reasons or supplementary evidence are added within the time limit, the Patent Reexamination Board may not consider them. Therefore, the reasons and evidence for the request for patent invalidation should be fully supplemented within one month from the date of filing the request for invalidation, otherwise, the evidence and reasons submitted late may face the result of not being admissible. In addition, the basic requirements for evidence of patent invalidation are the information published before the patent application date, and the patent application documents and published journals and magazines are more commonly used in practice.

Including domestic and foreign patents, periodicals and magazines.

Submit a request for invalidation. Pay the relevant fees.

1. What is the invalidation of a patent right?

In order to correct possible erroneous grants made by the Patent Office, the Patent Law not only provides for the procedure for revocation of patent rights, but also for invalidation.

After the expiration of six months from the date of the announcement of the grant of patent by the Patent Office, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid or partially invalid if it believes that the grant of the patent right does not comply with the relevant provisions of the Patent Law. The purpose of setting up an invalidation procedure and an avoidance procedure is the same, but there are differences between the two procedures.

1. The invalidation procedure shall be filed 6 months after the date of the announcement of the authorization of the Patent Office, and a request for invalidation may also be filed after the termination of the patent right.

2. The grounds for requesting invalidation include not only all the grounds for requesting revocation, but also insufficient disclosure; The modification is beyond the scope of the original disclosure; duplicate licensing of the same invention; The person to whom the patent for invention or creation has been granted is not the first person to file the patent.

2. What are the results of applying for patent invalidation?

According to Article 49 of the Patent Law, the Patent Reexamination Board may make an examination decision on a request for invalidation under the following three circumstances:

1. The grounds for the request for invalidation are sustained, and the patent right shall be declared invalid in accordance with the law. According to Article 59 of the Patent Law, "a patent right declared invalid shall be deemed to have ceased to exist ab initio".

With the invalidation of the patent right, the basis of the dispute over patent infringement in the urban area, if a lawsuit has not been filed, a lawsuit cannot be filed on the ground of patent infringement, and if a judgment has not been made or a judgment has been made but has not been enforced, the litigation claim shall be dismissed or the enforcement shall be terminated.

2. If the grounds for the request for invalidation are established, the patent right shall be partially invalidated in accordance with the law, or the claims shall be amended, and the patent right shall continue to be valid. When a patent right is partially invalidated, the situation is more complicated and needs to be analyzed on a case-by-case basis. If part of the patented technology involved in the exploitation is declared invalid, the dispute shall be resolved with the same result as in the first case above.

If part of the technical content of the patent involved in the exploitation is maintained and continues to be valid, the conclusion shall be made after comparing the scope of the claims of the patent with the technical content involved in the exploitation in accordance with the provisions of Article 59 of the Patent Law.

3. If the grounds for the request for invalidation are not established, the request for invalidation shall be rejected and the original patent right shall continue to be valid. In this case, the fact that the patent right is maintained and continues to be valid indicates that the existence of the patent right has not caused infringement of the public interest, and therefore the legitimate rights and interests of the patentee should be safeguarded in accordance with the law. However, the continued validity of the patent right does not mean that the exploitation of the act necessarily constitutes patent infringement, and it is also necessary to make a specific analysis and judgment on whether the exploitation constitutes infringement in accordance with the provisions of the Patent Law in combination with professional knowledge.

Enterprises should seriously respond to the invalidation request made by others, because after the invalidation request is filed by others, the State Patent Office will give the enterprise a certain period of time for the enterprise to defend itself, and the enterprise only needs to present the practicality, novelty and inventiveness of the product patent with evidence, and use the evidence to point out that the reasons for the invalidation request are not established.

Article 45 of the Patent Law stipulates that:"From the date of the announcement of the grant of the patent right by the State Intellectual Property Office, any unit or individual that believes that the grant of the patent right does not comply with the relevant provisions of this Law may request the Patent Reexamination Board to declare the patent right invalid. "In order to safeguard the seriousness of the Patent Law and safeguard the interests of the general public, the Patent Law of the People's Republic of China has been set up in the patent examination procedure"Patent invalidation proceedings"。

Where a claimant for invalidation of a patent right requests a declaration of invalidation or partial invalidation of the patent right, it shall submit it to the Patent Reexamination Board"Request for invalidation of a patent"and explain the reasons and, if necessary, attach relevant supporting documents and explain the facts on which the explanation is based. If the request for invalidation of a patent right does not conform to the prescribed format, the requester shall supplement and correct it within the time limit specified by the Patent Reexamination Board; If it is not corrected within the time limit, the request for invalidation shall be deemed to be withdrawn. The Patent Reexamination Board examines the request for invalidation of the patent right, makes a decision, and notifies the applicant and the patentee.

The decision to declare a patent invalid shall be registered and announced by the State Intellectual Property Office of China. If a person is dissatisfied with the decision of the Patent Reexamination Board to declare the invention patent invalid or to maintain the patent right, he may file a lawsuit with the people's court within three months from the date of receipt of the notice. Legal basis:

Article 45 of the Patent Law of the People's Republic of China shall apply to the Patent Reexamination Board to declare the patent right invalid if any unit or individual believes that the grant of the patent right does not comply with the relevant provisions of this Law. Article 46 of the Patent Law of the People's Republic of China provides that the Patent Reexamination Board shall examine and make a decision on a request for invalidation of a patent right in a timely manner, and notify the applicant and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department.

A person who is dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or to maintain the patent right may file a lawsuit with the people's court within three months from the date of receipt of the notice. The people's court shall notify the opposing party to the invalidation request procedure to participate in the litigation as a third party.

(1) Commencement of invalidation proceedings

The invalidation proceedings shall be initiated at any time from the date of grant of the patent right by the patent administration department and may continue until the termination of the patent right. Since the decision on the examination of the request for invalidation can affect certain matters before the termination of the patent right, it is allowed to file a request for invalidation after the termination of the patent right.

The subject of the invalidation procedure includes any entity or individual, but according to the provisions of the Patent Examination Guidelines, the patentee shall not declare his patent right invalid in its entirety.

(2) Examination of the request for invalidation

After the Patent Reexamination Board has accepted the request for invalidation and initiated the invalidation procedure after passing the formal examination, it shall set up a collegial panel to conduct a collegial examination of the case requesting invalidation. The vast majority of cases are reviewed by a collegial group composed of three people (team leader, chief examiner, and participant). Only a very small number of major cases are reviewed by a five-member collegial team (1 team leader, 1 chief examiner, and 3 examiners).

(3) The decision to review the request for invalidation

After examination, the collegial panel made a decision on the request for invalidation.

There are three types of invalidation request review decisions;

The first is to declare the patent right invalid in its entirety, the second is to declare the patent right partially invalid, and the third is to maintain the validity of the patent right.

(4) Follow-up judicial relief procedures

According to the second paragraph of Article 46 of the Patent Law of the People's Republic of China, a person who is dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or to maintain the patent right may file a lawsuit with the Patent Reexamination Board as the defendant within three months from the date of receipt of the notice.

The court in which the lawsuit is accepted and the nature of the action is the same as that of the lawsuit filed against the review decision. It should be noted that the opposing party to the invalidation proceedings participates as a third party.

Prepare the materials for the request for invalidation, submit them to the reexamination board in person or by mail, and pay the fee for the request for invalidation - formal examination - issuance of a notice of correction - issuance of a notice of acceptance if the correction is qualified - supplementary reasons and arguments - issuance of an export examination notice to both parties - participation in the oral examination - issuance of an invalidation examination decision.

It needs to be in duplicate in paper form), if you need to ** how to submit an invalid ** power of attorney separately. Within one month of filing at the same time, you will need to submit an invalid fee. Mail it to the Review Board of the State Intellectual Property Office.

Of course, electronic copies can also be submitted at present, so there is no need to submit them in duplicate.

You have two questions, do you apply for a patent, or invalidate someone else's patent?

Prepare the materials for the request for invalidation, submit them to the reexamination board in person or by mail, and pay the fee for the request for invalidation, formal examination, issuance of a notice of amendment, issuance of a notice of acceptance if the correction is qualified, supplementary reasons, statement of opinions, issuance of an oral examination notice to both parties, participation in oral examination, issuance of an invalidation examination decision.

1) The patent application for which the patent is granted or the application for a utility model is not novel, inventive or practical;

2) the design patent application for which the patent right is granted is an existing design, is not clearly distinguished, or conflicts with a previously obtained legal right;

3) The invention patent or utility model patent for which the patent right is granted is not a new technical solution, and the application for the design patent for which the patent right is granted is not aesthetic or non-new design;

4) The invention patent or utility model patent for which the patent right has been granted has not been examined for confidentiality, and the patent is applied for in a foreign country;

5) The application documents of the invention patent or utility model patent for which the patent right has been granted are unclear, incomplete and unrealizable, and the claims are not based on the description and are not clear or concise;

6) The design patent for which the patent has been granted does not clearly indicate the product for which protection is claimed;

7) The amendment to the patent application documents exceeds the scope recorded in the original application documents;

8) The independent claims do not reflect the technical solution of the invention patent or utility model as a whole, and record the necessary technical features to solve the technical problem;

9) the documents of the divisional application are beyond the scope recorded in the original application;

10) The invention patent creation violates national laws, social morality or obstructs public interests;

11) It does not fall within the scope of patent granting and violates the provisions of Article 25 of the Patent Law.

After the application for invalidation of the patent right submitted by the applicant is accepted by the Patent Application Reexamination Board, the applicant may addition, amend, or add evidence within one month from the date of acceptance, and if the applicant provides new evidence or amends and supplements the original evidence beyond the prescribed one-month period, the Patent Application Reexamination Board may not consider it.

1. If the request for invalidation is not filed against a patent that has been published and granted, it shall not be accepted, and the requester may file a request for invalidation against the patent right that has been terminated or abandoned;

2. If the patent right for which the invalidation is requested has been declared invalid in its entirety by the Patent Reexamination Board's effective decision on the request for invalidation, it shall not be accepted. After the decision of the Patent Reexamination Board to declare a part of the patent right invalid takes effect, the applicant may file a request for invalidation against the claims that are upheld by the decision.

3. If the patentee files a request for invalidation of the patent right, the request for a declaration of invalidity of the patent right in its entirety, the evidence submitted is not a public publication, or the applicant is not the owner of all the patentees of the common patent right, the request shall not be accepted.