1. Declare all patent rights invalid;
2. Declare the patent part invalid;
3. Keep the patent right valid.
After the decision made by the Patent Reexamination Board to declare the patent right invalid comes into effect, it shall be registered and announced by China National Intellectual Property Administration.
If a party refuses to accept the invalid decision, he may bring a lawsuit to the court.
Materials required for failure:
According to the provisions of Article 45 of the Patent Law, if a patent right is requested to be declared invalid or partially invalid, a request for invalidation of the patent right and necessary evidence 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.
The Patent Reexamination Board will make a decision about 8 months from the date of submitting the application.
1, invalid program startup
The invalidation procedure shall start at any time from the date when the patent administrative department of the State Council grants the patent right, and may last until the patent right is terminated. Because the decision to examine the request for invalidation can affect some matters before the termination of the patent right, it is allowed to make the request for invalidation after the termination of the patent right.
The subject of invalidation procedure: including any unit or individual, but according to the provisions of the Patent Examination Guide, the patentee shall not declare all his patents invalid.
2. Invalid reason
The reasons for the invalidation of the request mainly include: that the invention-creation is not novel, creative and practical, or is the same as or similar to the existing design, or conflicts with the legal rights obtained by others in advance; The technical scheme in the description of the invention or utility model cannot be realized by technicians in the technical field; The modification of the specification is beyond the scope of the original specification and claims, or beyond the scope of the original pictures and photographs; The claim does not explain the scope of protection based on the specification; The scope of protection in the claim is unclear; The independent claim lacks the necessary technical features; Violation of national laws or not within the scope of patent protection.
3. Examination of the request for invalidation
After the Patent Reexamination Board accepts the request for invalidation through formal examination and starts the procedure of invalidation, it will form a collegial panel to examine the case of the request for invalidation. Most cases are reviewed by a collegial panel composed of three people (team leader, presiding judge and jurors). Only a few cases with serious circumstances are reviewed by a collegial panel of five people (1 team leader, 1 presiding judge and three jurors).
4, the request for invalidation review decision.
After examination, the collegial panel made a decision to examine the request for invalidation. There are three kinds of examination decisions on the request for invalidation: one is to declare all patent rights invalid, the other is to declare some patent rights invalid, and the third is to maintain the patent rights valid.
5. Follow-up judicial relief procedures.
According to the second paragraph of Article 46 of China's Patent Law, anyone who refuses to accept the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right may, within 3 months from the date of receiving the notice, take the Patent Reexamination Board as the defendant and bring a lawsuit to the people's court.
The court accepting the lawsuit and the nature of the lawsuit are the same as those filed against the review decision. It should be noted that the other party to the invalid procedure participated in the lawsuit as a third party.