Article 45 of the Patent Law of China Since the date when the patent administrative department of the State Council announced the grant of the patent right, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid if it considers that the grant of the patent right is not in conformity with the relevant provisions of this Law.
The reasons for the request for invalidation include: the invention-creation granted a patent does not conform to the provisions of Article 2, Paragraph 1 of Article 20, Article 22, Article 23, Paragraph 3 and Paragraph 4 of Article 26, Paragraph 2 of Article 27, Article 33 or Paragraph 1 of Article 20 and Article 43 of these Rules, or belongs to the provisions of Article 5 and Article 25 of the Patent Law, or the patent right cannot be obtained according to the provisions of Article 9 of the Patent Law.
1. Article 2 of the Patent Law: Inventions and creations mentioned in this Law refer to inventions, utility models and designs.
Invention refers to a new technical scheme proposed for a product, method or its improvement.
Utility model refers to a new practical technical scheme for the shape, structure or combination of products.
Appearance design refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or combination of products and the combination of colors, shapes and patterns.
2. Paragraph 1 of Article 20 of the Patent Law: Where any entity or individual applies for a patent for invention or utility model completed in China to a foreign country, it shall file a confidentiality review with the patent administration department of the State Council in advance. The procedures and time limit for confidentiality review shall be implemented in accordance with the provisions of the State Council.
3. Article 22 of the Patent Law: Inventions and utility models for which patent rights are granted shall be novel, creative and practical.
Novelty means that the invention or utility model does not belong to the prior art; Before the filing date, no unit or individual has filed an application for the same invention or utility model with the administrative department for patent in the State Council, and it is recorded in the patent application documents published or announced after the filing date.
Creativity means that compared with the prior art, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress.
Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
The existing technology mentioned in this law refers to the technology known to the public at home and abroad before the date of application.
4. Article 23 of the Patent Law: The design for which the patent right is granted does not belong to the existing design; Before the filing date, no unit or individual has filed an application with the patent administration department of the State Council for the same design, and it is recorded in the patent documents published after the filing date.
Compared with the existing design or the combination of existing design features, the patented design should have obvious differences.
A design that has been granted a patent right shall not conflict with the legal rights that others have obtained before the date of application.
Existing designs as mentioned in this Law refer to designs known to the public at home and abroad before the date of application.
5. Paragraph 3 and Paragraph 4 of Article 26 of the Patent Law: the description shall give a clear and complete description of the invention or utility model, subject to the realization by technicians in their technical fields; Attached drawings shall be attached when necessary. The technical points of the invention or utility model shall be briefly explained.
The patent claim shall be based on the specification, and clearly and briefly define the scope of patent protection.
6. Paragraph 2 of Article 27 of the Patent Law: The relevant pictures or photographs submitted by the applicant shall clearly indicate the design of the product for which patent protection is required.
7. Article 33 of the Patent Law: An applicant may modify his patent application documents, but the modification of the application documents for patents for inventions and utility models shall not exceed the scope recorded in the original specification and claims, and the modification of the application documents for patents for designs shall not exceed the scope indicated in the original pictures or photographs.
8. Paragraph 2 of Article 20 of the Detailed Rules for the Implementation of the Patent Law: An independent claim shall reflect the technical scheme of the invention or utility model as a whole and record the necessary technical features for solving technical problems.
9. Paragraph 1 of Article 43 of the Detailed Rules for the Implementation of the Patent Law: An application for division filed in accordance with the provisions of Article 42 of these Detailed Rules may retain the original filing date, and if it enjoys priority, it may retain the priority date, but it shall not exceed the scope recorded in the original application.
10. Article 5 of the Patent Law: No patent right shall be granted for inventions and creations that violate laws, social morality or harm public interests.
No patent right shall be granted to inventions and creations obtained or utilized in violation of laws and administrative regulations and completed by relying on genetic resources.
1 1. Article 25 of the Patent Law: No patent right shall be granted for the following items:
(1) scientific discoveries;
(2) rules and methods of intellectual activities;
(3) Methods of diagnosis and treatment of diseases;
(4) Species of animals and plants;
(5) substances obtained by nuclear transformation;
(six) the design of the pattern, color or the combination of the two.
The production method of the products listed in Item (4) of the preceding paragraph may be granted a patent right in accordance with the provisions of this Law.
12. Article 9 of the Patent Law: Only one patent right can be granted for the same invention-creation. However, if the same applicant applies for a patent for utility model and a patent for invention at the same time on the same day, and the patent for utility model obtained earlier has not been terminated, and the applicant abandons the patent for utility model, the patent for invention may be granted.
Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant.