When will the patent invalidation decision take effect?

The so-called patent right is invalid. After the patent right is granted, it is found that it does not meet the conditions for granting the patent right in the Patent Law and its implementing rules, and it is declared invalid after reexamination and confirmation by the Patent Reexamination Board. An invalid patent right is regarded as nonexistent from the beginning. Patent right After a patent is authorized, if anyone thinks it is illegal, he may file a declaration of invalidation with the Patent Reexamination Board of the State Intellectual Property Office. In response to the request for invalidation, the reexamination board may make a decision to maintain the validity of the patent right and declare it invalid in whole or in part. When will the invalid decision of the reexamination board take effect? There is no clear stipulation in laws and regulations. The effective time of typical administrative acts can be divided into immediate effect, notice effect, commitment effect and conditional effect. If the invalid decision made by the reexamination board is regarded as an administrative act, what is its effective date? Because the invalid decision is unconditional, there are three dates, namely, the date of making the invalid decision, the date of posting and the date of delivery, which correspond to the above-mentioned immediate effect, notification effect and acceptance effect respectively. In an earlier case, the Supreme Court found ((20 12) Minti ZiNo. 1 10) The invalid decision shall take effect as of the date it is made. The reason is that the issue date and delivery date may change due to human factors, sometimes much later than the production date. If the invalid decision takes effect on the date of publication or service, the period from the date of making to the date of publication or service may be maliciously used by the parties, resulting in unreasonable results. However, it is relevant and certain for the world to set the date as punctuality, so that the result may be fair. On the other hand, the process of the reexamination board making invalid decisions is more similar to judicial decisions than typical administrative actions. For example, invalid procedures include judicial characteristics such as oral hearing, cross-examination and withdrawal of charges; In addition, the invalid procedure is attended by both parties, and the collegial panel makes an intermediate judgment; The duty of the collegial panel is not to comprehensively examine the validity of the patent, but to mainly determine whether the evidence and reasons for the claimant's request for invalidation of the patent are established. (At the same time, the collegial panel has limited authority to review ex officio. If the invalid decision made by the review board is regarded as a quasi-judicial act, then its effective date cannot be the date when the decision is made. It will take effect only when the prosecution period has passed or the court substantially upheld the judgment (in fact, the court decided to reject the plaintiff's claim). Articles 29 and 30 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes (II) indirectly support this proposition. Article 29 and Article 30 respectively stipulate that the decision to declare the patent right invalid (the invalid decision has not yet taken effect) and the decision to declare the patent right invalid shall not be prosecuted within the time limit, or the referee shall not revoke the decision after the prosecution takes effect (the invalid decision has already taken effect). This means that at the court level, the patent invalidation decision can only take effect when the prosecution expires or the effective judgment has not been revoked. In practice, the Reexamination Board thinks that the time when the patent invalidation decision takes effect is the announcement date, which seems to echo the fact that the invention patent right stipulated in Article 39 of the Patent Law takes effect from the announcement date. Since it takes at least half a year from making a decision to the announcement date of the decision, and the invalid decision will not be announced when the parties file a lawsuit against it, the determination standard of the reexamination board is not contradictory to the above-mentioned determination standard of the court. In addition, according to the provisions of Article 46 of the Trademark Law, if the party concerned does not bring a lawsuit against the decision or ruling of the Trademark Review and Adjudication Board upon the expiration of the statutory time limit, the decision or ruling of the Trademark Review and Adjudication Board will take effect. Let's look forward to the fourth amendment of the patent law.