Invalidation of patents, invalidation of patent rights Reasons for invalidation of patent rights

Article 65 of the Detailed Rules for the Implementation of the Patent Law stipulates that, in accordance with Article 45 of the Patent Law, a request for invalidation or partial invalidation of a patent right shall be submitted to the Patent Reexamination Board in duplicate with the request for invalidation of the patent right and the necessary evidence. The request for invalidation shall specifically state the reasons for the request for invalidation in conjunction with all the evidence for the enhancement of efficiency, and indicate the evidence on which each reason is based.

The grounds for the request for invalidation include:

1) It does not comply with the provisions of Article 2 of the Patent Law, that is, the invention-creation for which the patent right has been granted does not belong to the object of protection of inventions, utility models and designs;

2) It does not comply with the provisions of Paragraph 1 of Article 20 of the Patent Law, that is, any unit or individual applies for a patent for an invention or utility model completed in China to a foreign country, but does not report to the patent administration department for confidentiality review in advance;

3) does not comply with the provisions of Article 22 of the Patent Law, that is, the invention or utility model patent for which the patent right has been granted does not have novelty, inventiveness and applicability;

4) does not comply with the provisions of Article 23 of the Patent Law, i.e., the design patent for which the patent right is granted is an existing design, is not clearly distinguished, or conflicts with the previously obtained legal rights;

5) It does not comply with the provisions of Paragraph 3 of Article 26 of the Patent Law, that is, the specification of the invention or utility model patent for which the patent right has been granted is unclear or incomplete, which makes it impossible for a person skilled in the art to realize it;

6) It does not comply with the provisions of Paragraph 4 of Article 26 of the Patent Law, that is, the claims of the invention or utility model patent for which the patent right has been granted are not based on the description and the scope of protection of the claims is unclear;

7) does not comply with the provisions of Paragraph 2 of Article 27 of the Patent Law, that is, the design patent for which the patent is granted does not clearly indicate the product for which protection is claimed;

8) Failure to comply with the provisions of Article 33 of the Patent Law, i.e., the modification of the patent application documents beyond the scope recorded in the original application documents;

9) does not comply with the provisions of Paragraph 2 of Article 20 of the Detailed Rules for the Implementation of the Patent Law, that is, the independent claims of the invention or utility model patent for which the patent right has been granted lack the necessary technical features to solve the technical problem;

10) It does not comply with the provisions of Paragraph 1 of Article 43 of the Detailed Rules for the Implementation of the Patent Law, that is, the patent for which the patent right has been granted is a divisional application, and the content of the divisional application exceeds the scope recorded in the original application;

(11) It falls under the provisions of Article 5 of the Patent Law, that is, the invention or utility model patent for which the patent right has been granted is an invention or creation that violates the law or social morality or obstructs the public interest;

12) It falls under the provisions of Article 25 of the Patent Law, that is, the invention or utility model patent for which the patent right is granted belongs to any of the scientific discoveries, rules and methods of intellectual activity, diagnosis and methods of diseases, varieties of animals and plants, substances obtained by the method of nuclear transformation, designs that mainly play a marking role in the patterns and colors of flat prints, or a combination of the two;

13) Failure to obtain a patent right in accordance with Article 9 of the Patent Law, i.e., there is a situation where the same invention or creation is repeatedly granted.

1. Legal basis for the request for invalidation:

1. According to Article 64 of the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China, the "grounds for the request for invalidation" of the patent right are the "circumstances" that lead to the invalidation of the patent right, including the following aspects:

1.The subject matter does not meet the conditions for granting a patent, including: the subject matter of the invention or utility model does not have novelty, inventiveness or utility; The subject matter of a design patent is not novel or conflicts with the prior legal rights of others.

2.Illegalities in patent applications: the specification does not fully disclose the invention or utility model; The claims of the granted patent are not based on the description; Amendments to the patent application documents are beyond the prescribed scope; The subject matter of the patent does not meet the definition of invention, utility model or design; the principle of negotiation authorization for simultaneous applications; The claims of the granted patent are unclear, unconcise or lack the necessary technical features to solve its technical problems;

3.Situations that violate mandatory provisions of law, including: violations of national laws, social morality, or obstruction of public interests; Circumstances in which patents are not granted by law such as scientific discoveries;

4.In the case of duplicate grant: If two or more applicants apply for a patent for the same invention-creation, the patent right is granted to the person who applied first, that is, the patent right is granted to only one person (the first applicant) for an invention-creation.

Inventions, utility models and designs cannot be patented under the above circumstances, but if they have already obtained a patent right, they may be declared invalid.

2. The reason for the request for invalidation refers to one of the following circumstances for the invention-creation for which the patent has been granted:

1) The invention or utility model is not novel, inventive and practical, and the design is the same and similar to the design that has been published in domestic and foreign publications or publicly used in China before the filing date, or conflicts with the legal rights previously obtained by others;

2) Failure to fully disclose the technical solution or write the description and claims in accordance with the regulations;

3) Modification exceeds the scope of the original application documents;

4) It does not meet the definitions of invention, utility model and design as stipulated in the Patent Law;

5) Violating national laws and public interests or harming social morality, or falling within the scope of non-grant of patent rights as stipulated in the Patent Law;

6) In the case of duplicate authorization.

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.

Shenzhen Zhisheng intellectual property lawyers inform you:

The grounds for a request for patent invalidation are mainly concentrated in the following aspects:

1) The invention or utility model is not novel, inventive and practical, and the design is the same and similar to the design that has been published in domestic and foreign publications or publicly used in China before the filing date, or conflicts with the legal rights previously obtained by others;

2) Failure to fully disclose the technical solution or write the description and claims in accordance with the regulations;

3) Modification exceeds the scope of the original application documents;

4) It does not meet the definitions of invention, utility model and design as stipulated in the Patent Law;

5) Violating national laws and public interests or harming social morality, or falling within the scope of non-grant of patent rights as stipulated in the Patent Law;

6) In the case of duplicate authorization.

In the case of a case, it is necessary to choose a favorable starting point so that it is easier to achieve the appeal;

Legal Analysis: Patents are invalidated in the following cases: the subject matter of the granted patent does not meet the definition of invention, utility model or design, etc.

Legal basis: Article 60 of the Detailed Rules for the Implementation of the Patent Law Article 5 In accordance with the provisions of Article 45 of the Patent Law, a request for invalidation or partial invalidation of a patent right shall be submitted to the Patent Reexamination Board in duplicate with the request for invalidation of the patent right and the necessary evidence. The request for invalidation shall specify the grounds for the request for invalidation in conjunction with all the evidence submitted, and indicate the evidence on which each ground is based.

The grounds for requesting invalidation referred to in the preceding paragraph refer to the fact that the invention-creation for which a patent has been granted does not comply with the provisions of Article 2, Article 20, Paragraph 1, Article 22, Article 23, Article 26(3), Paragraphs 3 and 4 of the Patent Law, Article 27(2), Article 33 of these Rules, or Article 20(2) or Article 43(1) of these Regulations, or falls under the provisions of Article 5 or Article 2 and Article 15 of the Patent Law, or that a patent cannot be obtained in accordance with Article 9 of the Patent Law.

Article 45 of the Detailed Rules for the Implementation of the Patent Law Except for the patent application documents, the other documents related to the patent application submitted by the applicant to the patent administration department shall be deemed to have not been submitted under any of the following circumstances: (1) the applicant has not used the prescribed format or filled in the documents that do not conform to the requirements; (2) Failure to submit supporting materials in accordance with provisions. The patent administration department shall notify the applicant of the office action deemed to have not been filed.

Article 45 From the date of the announcement of the grant of a patent right by the patent administration department, if any unit or individual considers that the grant of the patent right does not conform to the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid.

Interpretation] This article is about the provision of requesting invalidation of patent rights.

1. A patent right is a right granted by the competent patent authority of the State in accordance with the law. Although the patent office examines the patent application in accordance with the law, for various reasons, there is no absolute guarantee that the granted patent rights comply with the conditions for granting the patent under the law. In particular, for utility model and design patents, since the patent office does not conduct substantive examination on them, it is inevitable that there will be situations that do not meet the statutory conditions for granting patents later.

In order to provide the necessary remedies for such cases, this Law provides for the procedure for invalidating patent rights. Such a provision is conducive to the combination of the public and the examination authority that specializes in Naszli, correcting possible mistakes in the examination process of patent applications, and canceling patent rights that should not have been obtained in the first place.

2. In accordance with the provisions of this Article, the subject of a request for invalidation of a patent right may be any entity or individual. Of course, in practice, most of the units and individuals who file a request for invalidation are the units and individuals that have an interest in the patent right that is being invalidated.

3. In accordance with the provisions of the Detailed Rules for the Implementation of the Patent Law, when an entity or individual requests the invalidation of a patent right, it shall submit a written request and relevant documents to the Patent Reexamination Board, explaining the facts and reasons on which it is based. In accordance with the provisions of this Article, the grounds for invalidating a patent right shall be that the granted patent right does not comply with the relevant provisions of this Law, for example: the invention and utility model for which the patent right has been granted do not have novelty, inventiveness and utility; The design for which the patent right is granted is the same or similar to the design that has been published or used before the filing date; The invention or creation for which a patent has been granted is illegal, violates public morality and harms the public interest; Wait a minute.

4. The starting time for requesting invalidation of the patent right shall be the date of the announcement of the grant of the patent right. According to the provisions of the Patent Law before the amendment, a request to the Patent Reexamination Board to declare a patent invalid shall be filed six months after the announcement of the grant of the patent right. At the same time, it also stipulates that within six months from the date of the announcement of the grant of the patent right, any unit or individual that believes that the grant of the patent right does not meet the requirements prescribed by law may apply to the Patent Office for cancellation of the desensitization history.

Considering that both patent revocation and invalidation proceedings are set up to correct improper grants by the patent administration, patent revocation proceedings can be achieved entirely through invalidation proceedings. Therefore, in order to further simplify the procedure and avoid the long-term instability of the patent right due to the duplication of procedures, in the current revision of the Patent Law, the revocation procedure is abolished, and the starting time for applying for invalidation of the patent right is accordingly revised to the date of the announcement of the grant of the patent right, that is, the patent revocation procedure and the invalidation procedure that were originally stipulated in the patent are merged and revised into a new invalidation procedure.