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.
Reasons for requesting invalidation of the patent right include:
(1) The subject granted the patent right does not meet the definition of invention, utility model or design in Article 2 of the Patent Law;
(2) The invention-creation for which the patent right has been granted falls under the circumstances specified in Article 5 of the Patent Law, that is, it violates the national laws, social ethics or public interests, or the completion of the invention-creation depends on the genetic resources obtained or utilized in violation of laws and administrative regulations;
(3) The granted patent right cannot be granted in accordance with the provisions of Article 9 of the Patent Law, that is, the granting of the patent right will lead to the repeated granting of the patent right for the same invention-creation, or the applicant for the patent right is not the first applicant for the same invention-creation;
(4) The invention or utility model for which the patent right has been granted does not conform to the provisions of the first paragraph of Article 20 of the Patent Law, that is, the invention or utility model was completed in China, and the patentee applied to a foreign country without first reporting the confidentiality review to China National Intellectual Property Administration;
(5) The invention or utility model for which the patent right has been granted does not conform to the provisions of Article 22 of the Patent Law, that is, it is not novel, creative and practical;
(6) The design to which the patent right has been granted does not conform to the provisions of Article 23 of the Patent Law, that is, it does not possess novelty or creativity, or conflicts with the legal rights that others have obtained before the date of filing;
(7) The subject matter of the patent right belongs to the content that cannot be granted as stipulated in Article 25 of the Patent Law;
(8) The patent document for invention or utility model does not conform to the provisions of the third or fourth paragraph of Article 26 of the Patent Law, that is, the description does not fully disclose the invention or utility model;
The patent claim is not based on the specification, and clearly and concisely defines the scope of patent protection;
(9) The design patent document does not conform to the provisions of the second paragraph of Article 27 of the Patent Law, that is, its pictures or photographs do not clearly show the design of the product for which patent protection is required;
(10) The modification of the patent application file does not conform to the provisions of Article 33 of the Patent Law, that is, the modification of the patent application file for invention or utility model is beyond the scope recorded in the original specification and claims, or the modification of the patent application file for design is beyond the scope shown in the original picture or photograph;
(1 1) The claim of a patent for invention or utility model does not conform to the provisions of the second paragraph of Article 20 of the Detailed Rules for the Implementation of the Patent Law, that is, the independent claim does not reflect the technical scheme of the invention or utility model as a whole, and records the necessary technical features for solving technical problems;
(12) The granted patent right does not conform to the provisions of Paragraph 1 of Article 43 of the Detailed Rules for the Implementation of the Patent Law, that is, the patent right was granted on the basis of the divisional application, and the divisional examination was beyond the scope recorded in the original application.
Extended data case deduction
The request for invalidation of a utility model patent involves an air conditioning component. Evidence 8 and 9 submitted by the claimant for invalidation are copies of two notarial certificates. During the oral hearing, the applicant submitted the original notarial certificate and the notarial seal in court as annexes to the notarial certificate.
The patentee has no objection to the authenticity of the notarial certificate itself, but has doubts about the authenticity and disclosure time of the material evidence itself and whether the specific part of the material evidence should be replaced. He believes that the claimant has an interest in obtaining the user's air conditioner through trade-in.
For the opinions of the patentee, the collegiate bench group thinks:
Evidence 8 notarized the process of obtaining the indoor unit and outdoor unit of a certain brand air conditioner from a user's residence in Beijing, disassembling and taking photos of the obtained indoor unit and outdoor unit, and then sealing them. The certificate also notarized the warranty card, purchase invoice and "description" of the air conditioner.
Among them, the brand, model and invoice date of the air conditioner are recorded on the invoice, and the model on the invoice is the same as that shown on the "China Energy Label" affixed to the indoor unit of the air conditioner.
The upper part of the QR code on the indoor machine also shows the model and production date, which corresponds to the model on the invoice. The production date is in the same year as the date shown in the invoice, and the production date is in front, which is in line with Mr. Wang's postpartum sales process.
Based on this, the collegiate bench believes that the above evidence has constituted a chain of evidence, indicating that the air conditioner notarized and sealed in Evidence 8 was publicly sold before the application date of this patent, and the "description" written by the user can also prove the public sales time of the above air conditioner.
Evidence 9 notarized the process of obtaining the indoor unit and outdoor unit of the same brand air conditioner from another user's residence in Nanjing, and taking photos of the obtained indoor unit and outdoor unit and sealing them. The notarial certificate also keeps the "investigation record" obtained by the on-site inquiry user, the instructions on the use and installation of the air conditioner, the warranty card and the purchase invoice.
Like Evidence 8, the model and purchase date in the invoice of Evidence 9 can correspond to the relevant signs on the air conditioner, and the Investigation Record can also prove the above facts.
From the above contents notarized in Evidence 8 and 9, it can be seen that the survey records, buyer descriptions, warranty cards and purchase invoices of users in Beijing, Nanjing and different places of purchase can prove each other.
It shows that a certain brand and model of air conditioner has been publicly sold before the patent application date, so the collegial panel accepted the plaintiff's relevant claim that the air conditioners notarized and sealed in Evidence 8 and 9 have been publicly sold before the patent application date.
It is reasonable to get the air conditioner from the user in exchange for the old one, and it is difficult to show that there is a stake. As for whether the specific parts of the air conditioner in Evidence 8 and 9 have been replaced, firstly, although the parts are easy to disassemble.
However, in view of the fact that the notarization date of Evidence 8 and Evidence 9 is only more than two years away from the purchase date of the air conditioner, the component will not be replaced under normal use, and the air conditioner will be dismantled in court, which shows that the component works well with other structures in the indoor unit of the air conditioner. In Evidence 8, the part is still covered with dust, and there is no trace of alteration, indicating that it is unlikely to be replaced.
Secondly, the "description" in the user's handwriting in Evidence 8 and the "investigation record" in Evidence 9 also provide evidence that the parts have not been replaced. Thirdly, the air conditioners taken from Evidence 8 and Evidence 9 in Beijing and Nanjing have the same model and the same component structure, which also shows that the components have not been replaced.
Finally, the patentee did not provide evidence to the contrary to prove that the air conditioner of the above model claimed by him was replaced with the parts shown in kind or was not sold with the parts shown in kind. Therefore, the collegial panel does not support the patentee's claim that this part has been replaced.
In this case, all parts of each piece of evidence in the chain of Evidence 8 and Evidence 9 can confirm each other and point to the same sales fact. Evidence 8 and Evidence 9 can also confirm each other and reinforce each other, which can strengthen the inner confirmation of the collegial panel. It is obviously uneconomical and unfair for the claimant to prove the negative query raised by the patentee.
Therefore, in the case that the collegiate bench has been able to form inner confirmation in the above way, if the evidence itself has not changed, the patentee fails to present convincing evidence or reasons, or even fails to provide evidence, then it should bear the consequences of not providing evidence.
People's Network-Determination of Public Evidence in the Request Procedure for Patent Invalidation