1. An invalid patent right shall be regarded as nonexistent from the beginning. In accordance with the provisions of the first paragraph of this article, the patent right that has been declared invalid shall be deemed to have ended from beginning to end. The so-called "regarded as nonexistent from the beginning" means that the patent right is recognized by law as not legally binding from the beginning of authorization, rather than losing its legal effect after being declared invalid, that is, the patent right invalidation has retrospective effect.
2. In the first paragraph, this article stipulates that the invalidation of the patent right has retrospective effect at the same time, and in the second paragraph, it stipulates that it does not have retrospective effect in several cases, including:
1. The patent infringement judgment and ruling made and executed by the people's court before the invalidation of the patent right is not retroactive. Before the patent right is declared invalid, the patentee brings a lawsuit to the people's court on the grounds that others have infringed his patent right. If the people's court makes a judgment or ruling on compensation for patent infringement and executes it according to the patent right in force at that time, the judgment or ruling that has been made and executed after the patent right is declared invalid has no retrospective effect. Where a patent right is infringed in accordance with a judgment or ruling, the party concerned may not request the return of compensation for infringement damages.
2. The invalidation of the patent right has no retrospective effect on the decision on handling patent infringement disputes that have been performed or executed. In accordance with the provisions of Article 57 of this Law, the parties may request the administrative department for patent affairs to handle the patent infringement dispute; If a party refuses to accept the treatment made by the department in charge of patent work, he may bring an administrative lawsuit to the people's court within the prescribed time limit. If the party concerned neither brings a suit nor complies with the decision made by the administrative department for patent affairs at the expiration of the time limit, the administrative department for patent affairs may request the people's court to enforce it. Where the decision made by the administrative department for patent affairs on the handling of patent infringement disputes has been fulfilled by the parties concerned, or the administrative department for patent affairs applies to the court for compulsory execution, and then the patent right is declared invalid, it shall not have retrospective effect.
3. The invalidation of the patent right shall not be traced back to the implementation of the license contract or patent right transfer contract that has been performed. No party may request the return of the royalties paid for the performance of the patent licensing contract or the transfer fees paid for the performance of the patent transfer contract.
According to the general principles of the civil law, the interests obtained by the patentee who has been declared invalid because of exercising the patent right belong to unjust enrichment. Since the invalid patent right is regarded as nonexistent from the beginning, the patentee should return the unjust enrichment to the counterpart. However, considering the complexity of patent right as an intangible property right and authorization, it is difficult to ensure that every granted patent right meets the conditions stipulated by law and will not be declared invalid later. If the patent right is declared invalid, it should be traced back to the judgment and ruling made and executed by the court and the decision made and executed or enforced by the department in charge of patent work, which will make the judgment and ruling of the court and the decision of the administrative organ unstable, thus affecting the stability of the social and economic order. As for the patent licensing contract and the patent transfer contract, it is reasonable for the licensee and the patent assignee to obtain actual benefits because the patent right has been protected before it is declared invalid, and the royalties and patent transfer fees paid by them will not be returned.
Of course, according to this provision, if the patentee's malice causes losses to others, it shall be compensated.
3. In accordance with the provisions of the second paragraph of this article, if the patent right is declared invalid, the patent exploitation license contract or patent right transfer contract that has been performed shall not be retroactive, and the parties concerned shall not request the return of the patent exploitation fee paid for the performance of the patent exploitation license contract or the transfer fee paid for the performance of the patent right transfer contract. However, the third paragraph of this article also stipulates that if the patentee or patent assignor fails to return the patent royalty or patent assignment fee to the licensee or patent assignee in accordance with the provisions of the second paragraph, which obviously violates the principle of fairness, the patentee or patent assignor shall return all or part of the patent royalty or patent assignment fee to the licensee or patent assignee. For example, when the licensing contract or assignment contract is about to be fulfilled, and the licensee or patent assignee has not implemented the relevant patent or the implementation time is short, the patent right will be declared invalid. In a short period of time, they didn't get any actual benefits from patent implementation, or the benefits they got were far from the paid royalties and transferee fees, which was obviously unfair. The patentee or the assignor of the patentee shall return all or part of the royalties or patent transfer fees to the patentee or the assignee of the patentee.