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.
Second, the defendant to exercise the patent right invalid defense:
In patent infringement litigation, the defendant often raises the defense that the patent right is invalid. In order to exercise this right of defense, the defendant must make the following points clear:
1. In patent infringement litigation, the plaintiff has the responsibility to prove the authenticity and validity of the patent right, and the defendant does not bear the burden of proof in principle;
2, the defendant to protect their own interests, can put forward various defenses, the purpose is to make the plaintiff's proof can not be established;
3. If the defendant raises the defense that the patent right is invalid, it is best to provide the patent reexamination board's decision on the invalidation of the patent right;
4. The defendant may apply to the Patent Reexamination Board for invalidation of the patent right before or during the litigation;
5. In the case of infringement of the patent right of utility model or design, if the defendant requests to declare the patent right invalid during the defense period, the people's court shall suspend the lawsuit;
6. In some cases, if the defendant requests to declare the patent right invalid in the proceedings, the proceedings will not be suspended, and the court will continue to hear and make a judgment;
7. Before the Patent Reexamination Board declares the patent right invalid, the judgment or ruling made and executed by the people's court on the patent infringement case is still valid. Where the patentee maliciously causes losses to others, the patentee shall be liable for compensation.
Patent infringement refers to the act of exploiting a patent without the permission of the patentee mentioned in Article 60 of our country. The implementation here refers to manufacturing, using, promising to sell, selling, importing its patented products or using its patented method, as well as using, selling, promising to sell and importing products directly obtained by this method.
Patent infringement can also be called patent infringement. According to the provisions of China's patent law, patent infringement refers to the act of others exploiting a patent for profit without the permission of the patentee and other legal reasons within the validity period of the patent right. This kind of patent infringement referred to here is actually direct patent infringement.