1. Can the court directly determine that the patent right is invalid?
1. At present, it is controversial whether the court can directly determine whether the patent right is invalid, but the general view is that the people's court cannot directly determine whether the patentee's patent right is valid.
2, the law stipulates that:
patent law of the people's republic of china
Article 45 From 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 requester 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.
Administrative procedure law
Article 70 If an administrative act is under any of the following circumstances, the people's court shall make a judgment to cancel it or partially cancel it, or may order the defendant to make another administrative act:
(a) the main evidence is insufficient;
(two) the application of laws and regulations is wrong;
(3) Violating legal procedures;
(four) beyond the authority;
(5) abuse power for personal gain;
(6) Obviously inappropriate.
2. What are the conditions for invention-creation patents?
1, novelty
It means that before and after the application, no identical invention-creation was published in domestic and foreign publications, publicly used in China or known to the public in other ways, and no identical invention-creation was applied by other patent offices and recorded in the patent application documents published after the application date. In the following cases, the disclosed invention does not lose its novelty. An invention-creation applying for a patent does not lose its novelty in three cases, that is, it is first exhibited at an international exhibition within one month before the date of application, first published at an academic conference or technical conference, and its contents are leaked by others without the consent of the applicant.
2. Creativity
Compared with the prior art before the filing date, the invention has outstanding advantages and remarkable progress. Substantive features refer to the technical features of an invention. Compared with the existing technology, they are essentially different, have positive and negative effects, and are conducive to promoting scientific and technological progress.
Step 3 be practical
It means that the invention-creation for which a patent is applied can be manufactured and used in production, and can produce positive effects. The technical scheme is complete and feasible, and intermediate technicians in the same technical field can use it many times with the same effect, that is, it must be implementable and reproducible, and it must be able to produce high economic benefits and sociality.
These are Bian Xiao's answers to relevant legal questions. According to the relevant laws of our country, it is controversial whether the court can directly determine whether the patent right is invalid, but the general view is that the people's court cannot directly determine whether the patentee's patent right is valid.