After accepting the request for invalidation, the Patent Reexamination Board shall conduct an examination and make a decision in accordance with the following procedures:
1. After the Patent Reexamination Board accepts the request for invalidation, the claimant may supplement the reasons or evidence within 1 month from the date of filing the request for invalidation.
2. The Patent Reexamination Board forwards a copy of the request for invalidation and a copy of relevant documents to the patentee.
3. The Patent Reexamination Board is composed of a collegiate bench, generally composed of three people, and is responsible for the formal examination of the request for invalidation.
4. In the process of collegiate panel review, the patentee of invention and utility model may modify his claim, but shall not expand the scope of protection of the original patent right.
5. On the basis of finding out the facts, the collegial panel shall make an examination decision according to law and notify the claimant and the patentee. If the application grounds for requesting invalidation of the patent are established, the patent right shall be declared invalid; The reasons for requesting invalidation of the patent are partially established, and the patent right is partially invalid; If the reasons for the application for invalidation of the patent are not established, the patent right shall continue to be valid.
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 intermediate people's court within 3 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.
The decision to declare the patent right invalid shall be registered and announced by China National Intellectual Property Administration. If a party brings a lawsuit to the people's court within the prescribed time limit, it shall be announced by China National Intellectual Property Administration after the judgment of the people's court takes effect.
According to the original regulations of China National Intellectual Property Administration, patent infringement litigation can be suspended because the defendant requests to declare special effects. In this way, in the trial of patent infringement litigation, some defendants often make a request to declare the patent invalid in order to suspend the litigation and delay the trial time. In order to safeguard the legitimate interests of the patentee, a new clause has been added to the detailed rules for the implementation of the Patent Law: "In the examination procedure of the request for invalidation, the time limit specified by the Patent Reexamination Board shall not be extended." In addition, according to the "Several Provisions on the Applicable Law in the Trial of Patent Disputes" issued by the Supreme People's Court on June 1, as a defense means, patent invalidation can only be used conditionally in patent infringement litigation. In a dispute case of infringement of the patent right of utility model or design accepted by the people's court, if the defendant requests invalidation of the patent right within the defense period, the people's court shall suspend the litigation, except as otherwise provided. If the defendant requests to declare the patent right invalid during the defense period, the people's court shall not suspend the lawsuit.
[Editor] After receiving the request for invalidation, the Patent Reexamination Board will form a collegial panel to start the examination procedure for the request for invalidation (hereinafter referred to as "the procedure for invalidation") to examine whether the reasons for the request for invalidation are established. In the review process, in addition to applying the principles of lawful and fair law enforcement, request, ex officio review, hearing and publicity, the following principles must also be followed.
1. Principle of non bis in idem
For the patent right involved in the case of invalidation for which the examination decision has been made, if the request for invalidation is filed again, it will be accepted only if the reasons or evidence of the request for invalidation were not considered in the previous examination decision for the request for invalidation due to the time limit and other reasons. The Patent Reexamination Board will not accept the request for invalidation filed again with the same reasons and evidence.
2. The principle of disposition of the parties
In the procedure of invalidation, the claimant may give up all or part of the reasons and evidence for invalidation. The Patent Reexamination Board usually refuses to verify the reasons or evidence for invalidation abandoned by the claimant.
The parties have the right to settle in the procedure of invalidation. If both the claimant and the patentee express their desire for reconciliation to the Patent Reexamination Board, the Patent Reexamination Board will give the parties a certain time limit for reconciliation and suspend the examination decision until either party requests them to make an examination decision or the specified time limit expires. In the procedure of invalidation, the patentee may actively modify the request for invalidation made by the claimant, narrow the scope of patent protection or give up the subordinate claims. This change or waiver of the claim will be regarded as an admission from the beginning that the corresponding claim is not in compliance with the law, in other words, it is an admission of the claimant's request that the claim is invalid, thus exempting the claimant from the corresponding burden of proof.
3. Principle of confidentiality
The so-called confidentiality principle means that the members of the collegiate panel of the Patent Reexamination Board, other members of the collegiate panel and the chairman or vice-chairman in charge of examination shall not express or imply their views on the case to any party without authorization before making a decision on examination. In order to ensure fair law enforcement and confidentiality, members of the collegial panel shall not meet with one party in principle.
Editor: After examining the request for invalidation of the patent right, the Patent Reexamination Board will make an examination decision to declare the patent right invalid in whole or in part or to maintain its validity, and send it to both parties. If the party concerned fails to bring a suit in a people's court within three months from the date of receiving the reexamination decision, or the people's court makes an effective judgment to maintain the reexamination decision, the patent administration department of the State Council will register and announce the reexamination decision.
Where the request for invalidation in a patent infringement case has been notified to the relevant people's court or local intellectual property management department before the trial of the request for invalidation begins, the Patent Reexamination Board will send a reexamination decision and a notice of the end of the reexamination of invalidation to it after making a decision.
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