The distribution of burden of proof also follows the general principle of "whoever advocates gives evidence", and the parties have the responsibility to prove the facts on which their request for invalidation is based or refute the facts on which the other party's request for invalidation is based.
If there is no evidence or the evidence is insufficient to prove the facts identified by the parties, the parties with the burden of proof shall bear the adverse consequences.
As a lawyer with litigation experience, he has a good understanding of the burden of proof and the distribution of the burden of proof, and can predict the strength of evidence and the completeness of the evidence chain in time. For example, the application of the principle of evidence superiority and the principle of probability of evidence proving facts are beyond the reach of other professionals. Although the application of these principles of evidence in the patent invalidation procedure is not clearly defined, they have been used in practice, and the examination guide also stipulates that we can refer to the provisions on evidence in civil litigation. Therefore, lawyers have certain advantages in combining invalid reasons to organize evidence or refute the evidence of the other party. Of course, the premise is that lawyers must understand patents, the uniqueness of patent invalidation procedures, and the nature of patent invalidation, especially the knowledge of patent novelty, creativity and the openness of patent application documents. Therefore, lawyers with the qualification of patent agents should have greater achievements in the patent invalidation procedure.
2. What evidence does the patent invalidation procedure need to submit?
There are special requirements for the submission of evidence in the patent invalidation procedure, one is when the invalidation request is accepted, the other is after the invalidation request is accepted, and the third is after the invalidation request is accepted.
1. Evidence requirements when accepting invalid requests
According to the first paragraph of Article 64 of the Detailed Rules for the Implementation of the Patent Law, if a patent is requested to be declared invalid or partially invalid, it shall submit the corresponding evidence at the same time as the request for invalidation to the Patent Reexamination Board, and specify the reasons for the request for invalidation in combination with the submitted evidence, and indicate the evidence on which each reason is based.
Chapter 3.3 of the fourth part of the Review Guide stipulates that "if the claimant fails to specify the reasons for invalidation, or submits 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, his request for invalidation will not be accepted."
The above provisions show that the requirements for evidence when accepting the patent invalidation request are obviously different from those in the civil procedure law and the administrative procedure law.
Section 4. 1 in Chapter 3 of Part IV of the Review Guide clearly points out that the collegial panel usually only reviews the scope, reasons and evidence submitted by the claimant. It can be seen that in the procedure of invalidation, evidence is not only the formal requirement of whether the procedure can be started, but also the key to the success of the request for invalidation.
2. Time limit for submitting supplementary evidence after the invalid request is accepted
In the procedure of patent invalidation, the time limit of proof is of great significance. Once the time limit for adducing evidence exceeds the time limit and is not considered by the Patent Reexamination Board, it will often become a decisive factor affecting the success or failure of this invalidation procedure.
2. 1, the applicant's certificate
Section 4.3. 1 in Chapter III of Part IV of the Examination Guide stipulates: (1) If the claimant supplements the evidence within one month from the date of filing the request for invalidation, he shall specify the relevant reasons for invalidation in combination with the evidence within this time limit, otherwise the members of the Patent Reexamination Board will not consider it. (2) If the claimant supplements evidence one month after the date of filing the request for invalidation, the Patent Reexamination Board will generally not consider it, except for the following circumstances: (1) The claimant supplements evidence within the time limit specified by the Patent Reexamination Board and specifically explains the relevant reasons for invalidation in combination with the evidence within the time limit; (2) Submit common-sense evidence in technical fields such as technical dictionaries, technical manuals, textbooks, etc., or notarial certificates, originals and other evidence used to improve the legal form of evidence before the end of the oral hearing debate, and explain the relevant invalid reasons in detail in combination with the evidence within this period. (three) the evidence submitted by the claimant is in a foreign language, and the time limit for submitting the Chinese translation is applicable to the time limit for presenting evidence.
2.2. Proof of the patentee
Section 4.3.2, Chapter 3, Part IV of the Examination Guide stipulates: "The patentee shall submit evidence within the time limit specified by the Patent Reexamination Board, but before the end of the oral hearing debate, it may supplement the common-sense evidence known in technical fields such as technical dictionaries, technical manuals and textbooks or notarized certificates and originals used to improve the legal form of evidence.
Where the patentee submits or supplements evidence, it shall specify the evidence submitted within the above-mentioned time limit.
The evidence submitted by the patentee is in a foreign language, and the time limit for submitting the Chinese translation of the evidence shall apply to the time limit for adducing evidence.
If that evidence submit or supplemented by the patentee doe not meet the above-mentioned time limit or fails to specify the evidence submitted or supplemented within the above-mentioned time limit, the patent reexamination Board shall not consider it. "
From the above provisions in the Examination Guide, we find that the evidence requirements for patent invalidation are obviously different from those in civil or administrative litigation: the time limit for providing evidence must be specified at the same time as the evidence is specified. According to the explanation in Detailed Interpretation of the New Patent Law compiled by the Ministry of Justice of China National Intellectual Property Administration, on the one hand, the claimant should specify the purpose of each piece of evidence provided, that is, the evidence is. On the other hand, the claimant should at least have evidence to support every reason for declaring the patent invalid, such as lack of novelty. Claimants should not submit meaningless evidence to their claims, nor should they make unfounded and invalid claims. In other words, the claimant should correspond the submitted evidence with the reasons for invalidation one by one, and the patentee should specify the reasons that meet the conditions for patent grant according to the evidence. Otherwise, the Patent Reexamination Board may not consider it. In the proceedings, we only need to submit the evidence within the time limit for proof, without giving specific reasons. You can stay in the trial and clarify the purpose of submitting evidence according to the requirements of the case. Obviously, the patent invalidation procedure is not so strict with the requirement of submitting evidence.
3. Submit overdue evidence
Article 66 of the Detailed Rules for the Implementation of the Patent Law stipulates that "the Patent Reexamination Board may not consider the reasons or supplementary evidence that have been supplemented within the time limit". "Possibility" is not completely ignored, that is to say, the Patent Reexamination Board still has the discretion to "consider" in law, and the road has not been blocked. This provision can be understood as follows: if the claimant "supplements reasons or evidence" within the time limit, "not considering" embodies the general principle and "considering" is the exception principle. But when can we "consider"? Unclear laws and administrative regulations leave room for the Patent Reexamination Board to explain how to implement Article 66 of the Patent Law. It will lead to the excessive discretion of the reexamination board, which will easily lead to the sudden attack of the claimant on the evidence, which will lead to the patentee scrambling to fight in the oral hearing, which will affect the quality of the trial and be unfair to the patentee.