procedure
1. Submit the request document for invalidation and pay the request fee for invalidation.
The claimant for invalidation shall submit the request document for invalidation to the reexamination and invalidation trial department of the Patent Office, and pay the request fee for invalidation in full within 1 month from the date of submission.
Payment method of the request fee for invalidation:
(1) Post office remittance
(2) Bank remittance
(3) Online payment
2. Notice of acceptance of the request for invalidation
If the request for invalidation conforms to the relevant provisions of the Patent Law and its detailed rules for implementation and review guidelines after formal examination, the reexamination and invalidation department of the Patent Office shall issue a notice of acceptance to the requester and the patentee.
3. Notice of correction of the request for invalidation
If the request for invalidation does not conform to the relevant provisions of the Patent Law and its detailed rules for implementation and review guidelines after formal examination and needs to be corrected, the reexamination and invalidation department of the Patent Office shall issue a notice of correction to the requester. The claimant shall make corrections within the specified time limit from the date of receiving the notice of correction.
4. The request for invalidation shall be deemed as no notice.
Where the request for invalidation is under any of the following circumstances, the reexamination and invalidation department of the Patent Office shall issue a notice to the requester as not submitted:
(1) The claimant fails to make corrections within the specified time limit in the correction notice issued by the reexamination and invalidation department of the Patent Office;
(2) The applicant makes corrections within the specified time limit, and the same defect still exists after two corrections;
(3) The claimant fails to pay or fails to pay the request fee for invalidation within one month from the date of filing the request for invalidation.
5. Notice of non-acceptance of the request for invalidation
Where the request for invalidation is under any of the following circumstances, the reexamination and invalidation department of the Patent Office shall issue a notice of rejection to the requester:
(1) Multiple obligees * * * request for invalidation at the same time (except that the obligee is the same as the patentee);
(2) The patent for which the request for invalidation is directed has not been authorized;
(3) The patent against which the request for invalidation is made has been abandoned from the beginning, or the right is invalid;
(four) the claimant does not have the qualification as a subject of civil litigation;
(five) foreigners, foreign enterprises or other foreign organizations that have no habitual residence or business office in China have not entrusted a patent agency as the claimant;
(6) The patentee makes a request for invalidation of his patent right, and the request for invalidation of the patent right is complete, and the evidence submitted is not a public publication, or the request for invalidation is not all the patentees who enjoy the patent right;
(7) The reason for the request for invalidation does not belong to the reason stipulated in the second paragraph of Article 65 of the Detailed Rules for the Implementation of the Patent Law;
(8) After the decision on examining the request for invalidation is made, the claimant requests invalidation of the same patent on the same grounds and evidence;
(9) The claimant fails to specify the reasons for invalidation, or has submitted evidence, but fails to specify the reasons for invalidation in combination with all the submitted evidence, or fails to specify the evidence on which each reason is based;
(10) Requested to declare the patent right of a design invalid on the grounds that the patented design conflicts with the legal rights that others have obtained before the application date, but the requester could not prove that he was the prior obligee or interested party.
Or did not submit evidence to prove the conflict of rights.
(2) Termination of the invalidation procedure
In any of the following circumstances, the invalidation procedure shall be terminated;
(1) If the claimant withdraws the request for invalidation before making the examination decision, the invalidation procedure will be terminated, but the reexamination and invalidation trial department of the Patent Office thinks that
However, unless a decision to declare the patent right invalid or partially invalid can be made according to the examination work that has been carried out;
(2) If the claimant fails to reply to the notice of oral hearing within the specified time limit and does not participate in the oral hearing, his request for invalidation shall be regarded as withdrawn and the procedure for invalidation shall be terminated;
(3) The accepted request for invalidation is rejected because it does not meet the acceptance conditions;
(4) After the reexamination and invalidation trial department of the Patent Office makes a decision on the request for invalidation, if the party concerned fails to bring a suit in a people's court within three months from the date of receiving the decision, or the people's court makes an effective judgment to maintain the decision, the procedure for invalidation shall be terminated;
(5) After the reexamination and invalidation department of the Patent Office has made an examination decision to declare all the patent rights invalid, if the party concerned fails to bring a suit in a people's court within three months from the date of receiving the examination decision, or the people's court makes an effective judgment to maintain the examination decision, other procedures for invalidation of the patent right shall be terminated.
legal ground
patent law
Article 45. 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.
Article 46
The Patent Reexamination Board shall promptly examine the request for invalidation of the patent right and make a decision, and notify the claimant and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.
Anyone who refuses to accept the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right may bring a lawsuit to the people's court within three months from the date of receiving the notice. The people's court shall notify the other party to the procedure for requesting invalidation to participate in the proceedings as a third party.