The invalidation of the patent right shall be made by the Patent Reexamination Board and registered and announced by the patent administration department of the State Council. The applicant shall file a written application for invalidation of the patent right with the the State Council Patent Reexamination Board, and attach relevant evidence in duplicate. The application shall specify the reasons for invalidation and indicate the evidence on which each reason is based.
The reason for the request for invalidation refers to that the invention-creation granted a patent has one of the following circumstances:
(1) An application for a patent for invention or utility model granted with a patent right is not novel, creative or practical;
(2) The application for a patent for design that has been granted a patent right is an existing design, and there is no obvious difference or conflict with the prior legal right;
(3) The patented invention patent or utility model patent is not a new technical scheme, and the patented patent application for design has no aesthetic feeling or is not a new design;
(four) the invention patent or utility model patent that has been granted a patent right has not been examined in a confidential manner, and has applied for a patent in a foreign country;
(5) The application documents for the invention patent or utility model patent granted with patent right are unclear, incomplete and impossible to realize, and the claim is not based on instructions, clear and concise;
(6) The patented design patent does not clearly indicate the product to be protected;
(seven) the modification of the patent application documents is beyond the scope recorded in the original application documents;
(8) The independent claim does not reflect the technical scheme of the invention patent or utility model as a whole, but records the necessary technical features for solving technical problems;
(nine) the documents of the divisional application are beyond the scope recorded in the original application;
(10) The invention patent creation violates national laws, social morality or harms public interests;
(1 1) does not belong to the scope of patent authorization and violates the provisions of Article 25 of the Patent Law.
After the Patent Application Reexamination Board accepts the applicant's request for invalidation of the patent application, the applicant may supplement, modify or supplement the evidence within one month from the date of acceptance, and provide new evidence or modify or supplement the original evidence beyond the prescribed one-month period, and the Patent Application Reexamination Board may not consider it.
Legal provisions on invalidation of patents: Article 65 of the Detailed Rules for the Implementation of the Patent Law. According to Article 45 of the Patent Law, the request for invalidation or partial invalidation of the patent right shall be submitted to the Patent Reexamination Board in duplicate. The request for invalidation shall, in combination with all the evidence submitted, specify the reasons for the request for invalidation and indicate the evidence on which each reason is based.
Article 66 of the Detailed Rules for the Patent Law: If the request for invalidation of the patent right does not conform to the provisions of Paragraph 1 of Article 19 of the Patent Law or Article 65 of these Detailed Rules, the Patent Reexamination Board shall not accept it.
After the Patent Reexamination Board makes a decision on the request for invalidation, the Patent Reexamination Board refuses to accept the request for invalidation on the same grounds and evidence.
Where a request for invalidation of the patent right for a design is made on the grounds that it does not conform to the third paragraph of Article 23 of the Patent Law, but no evidence to prove the conflict of rights is submitted, the Patent Reexamination Board shall not accept it.
If the request for invalidation of the patent right does not conform to the prescribed format, the claimant for invalidation shall make corrections within the time limit specified by the Patent Reexamination Board; If no correction is made at the expiration of the time limit, the request for invalidation shall be deemed not to have been made.
Legal consequences of invalid patent: The legal consequence of invalid patent is that the invalid patent right is regarded as nonexistent from the beginning. 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 decision to declare the patent right invalid has no retrospective effect on the judgments and rulings of patent infringement made and executed by the people's court before the patent right is declared invalid, the decisions on handling patent infringement disputes that have been performed or executed, and the patent licensing contracts and patent transfer contracts that have been performed. However, if the patentee's malice causes losses to others, it shall make compensation. In accordance with the above provisions, if the patentee or the patentee's transferor fails to return the patent royalty or patent transfer fee to the licensee or the patentee, which obviously violates the principle of fairness, the patentee or the patentee's transferor shall return all or part of the patent royalty or patent transfer fee to the licensee or the patentee's transferee.