According to Article 45 of the Patent Law:
Since the date when the patent administrative department of the State Council announced the grant of the patent right, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid if it considers that the grant of the patent right is not in conformity with the relevant provisions of this Law.
In China, any patent is authorized by the government after examination, but the strength and conditions of examination are limited, which may make some applications that do not meet the patent requirements authorized. Such patents are easy to fail, so the stability is poor. A patent with strong stability is bound to be a good defense against invalid requests from others.
What are the factors that affect the stability of patent right?
1, substantial factor
The stability of patent right is influenced by many aspects, but the most basic factor is the technical scheme itself.
These factors can be roughly divided into three categories:
One is that the quality of application documents is not high, which leads to the instability of authorized patents;
The other is that the patent right is unstable because it violates the principle of prior application and prohibits repeated authorization;
The third category is that the technical scheme does not conform to the definition of patent in the Patent Law, does not conform to the prohibitive provisions of the Patent Law, and does not conform to the "three characteristics" of the first patent in the Patent Law, which leads to the instability of the authorized patent.
2. Procedural factors
The influencing factors of procedure are divided into two parts: administrative procedure and judicial procedure.
In China, patent administrative procedures mainly include patent examination procedures and patent authorization relief procedures.
Judicial procedures are respectively the principle of infringement defense, the procedure of litigation suspension and the administrative procedure of patent invalidation.
In China, the unreasonable patent system and procedures are the important reasons for the long-term instability of patent rights.