Over the past three years, many pharmaceutical companies have included Shuanghe Pharmaceutical, Shanghai Pioneer Pharmaceutical, Baiyun Mountain Medical Technology, Guangzhou willman, etc. Finally, there is a breakthrough. Guangzhou Baiyun Mountain Pharmaceutical Technology Development Co., Ltd. announced yesterday that the Patent Reexamination Board of the State Intellectual Property Office had made a decision on March 10, declaring the patent of Guangzhou willman Pharmaceutical Co., Ltd. ZL97 108942.6 "Antibiotic Complex Against β -lactamases" invalid because it did not have the creative provisions of Article 22 of the Patent Law.
However, since the Patent Reexamination Board of the State Intellectual Property Office belongs to the administrative organ, Guangzhou willman Company, which currently owns the patent, can appeal the decision to the court within three months. Although the biggest patent dispute case in China, which has attracted much attention, has finally taken a substantial step, legal analysts have pointed out that this patent case has also exposed some shortcomings of China's patent law, such as the repeated use of suspension of trial procedures because of unclear patent ownership, which has led to a long delay in patent disputes.
Ownership disputes and patent cases have long been unresolved.
In the past three years, the "Piper/Shu patent invalidation case" has been ups and downs and full of drama. Along with the patent case, there is a dispute over the ownership of the patent.
It is understood that as early as 65438+February 3, 2002, Beijing Shuanghe Pharmaceutical filed a request for invalidation with the Reexamination Board because the patent did not have novelty and creativity. After accepting the case, the Reexamination Committee conducted an oral hearing on August 1 1 2003, and both parties appeared in court. On August 27th, 2003, the collegial panel made a decision that all the patents were invalid. But on the same day, willman, who has the same legal representative as willman in Guangzhou, applied to Changde Intellectual Property Office for mediation on the grounds of the patent ownership dispute, requesting the Patent Reexamination Board to suspend the trial. As a result, the invalid decision has been sealed up for two and a half years because of the ownership dispute.
On September, 2003, the Patent Reexamination Board made a decision to suspend invalid patent cases. According to the provisions of the patent law, the procedures suspended due to ownership disputes generally do not exceed one year, and the patent suspension period is August 3, 20041day. Before the deadline, Guangzhou willman once again cited the unresolved ownership dispute on August 13, 2004. After Changde Intellectual Property Office revoked the dispute mediation case at the end of June, 2005 1 1, Guangzhou Intermediate People's Court conducted two more patent ownership disputes in willman.
Things are full of twists and turns In August last year, in order to end the patent lawsuit for production and sales as soon as possible, 1 1 domestic enterprises represented by Guangzhou Baiyun Mountain Science and Technology Company held a press conference, saying that they had filed a "patent non-infringement" lawsuit with the Guangzhou Intermediate People's Court. On June 5438+09, last month, willman Group authorized Shanghai Xinxianfeng Pharmaceutical Co., Ltd. and Harbin Zhicheng Institute of Medical Science and Technology to use "β-lactamase-resistant antibiotic complex" and its compound preparation "Piperacillin sodium and sulbactam sodium for injection", and the three parties signed a contract to establish a production and marketing alliance on the premise that the patent was legal and valid.
China's patent law is ready to be amended.
The Patent Reexamination Board of the State Intellectual Property Office reacted strongly to the decision that the patent was invalid.
Ye, a representative of Shanghai Pioneer Pharmaceutical Co., Ltd., who signed a patent transfer agreement with Guangzhou willman not long ago, said in an interview that the company had just learned about this matter and was communicating with willman to confirm it. If the patent is within the validity period, the two parties will continue to cooperate. If the patent is really invalid, Shanghai Pioneer will modify the previous cooperation agreement.
On the same day, Guangzhou willman Company issued a lawyer's statement to the media, saying that even if the State Patent Reexamination Board makes a statement, it must be tried by the people's court. Before the people's court makes an effective judgment, the statement of the Patent Reexamination Board shall have no effect and no legal force. That is, it belongs to the same situation as the "Viagra" patent in Pfizer.
It is understood that the Patent Reexamination Board of the State Intellectual Property Office is an administrative organ, and its decision is not final. If willman refuses to accept, he can bring a lawsuit to the Patent Reexamination Board of the State Intellectual Property Office within three months. Suwen Xu, a lawyer of Guangzhou Baiyunshan Pharmaceutical Technology Development Co., Ltd., said that according to the patent law, when a patent is declared invalid, it is regarded as never having existed. No matter before or after invalidation, anyone has the right to use it freely. When a patent is declared invalid, it shall immediately stop the patent licensing contract and patent transfer contract that have not been implemented or are being implemented.
Lawyer Peng of Rinan Law Firm told reporters that willman can indeed go to court to sue the Patent Reexamination Board of the State Intellectual Property Office, and the lawsuit will last for a long time. However, due to the credibility of the administrative organ, other enterprises can even produce and sell the patent within the time that the court has not ruled, because the patent is invalid.
According to the analysis of insiders, China's patent law has been implemented since 1985, and it has been implemented for more than 20 years, with some drawbacks exposed. For example, there is no limitation on the invalid time and times of termination due to unclear ownership of patent rights, and the patent law does not make a judicial interpretation of the ownership of patent rights. At that time, the patent law stipulated the dispute of patent ownership because there were many disputes between service inventions and non-service inventions at that time, and a procedure to suspend invalidation was needed. However, under the current circumstances, this situation is prone to legal loopholes. According to its disclosure, at present, China's patent law and patent examination guidelines are being revised.