1. What if someone else has applied for the patent right?
If the patent right has been applied for by others, the parties concerned may request the patent administration department to declare the patent invalid. In accordance with Article 65 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC) and Article 45 of the Patent Law, a request for invalidation or partial invalidation of the patent right shall be submitted to the Patent Reexamination Board in duplicate with the necessary evidence. 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 reason for the request for invalidation mentioned in the preceding paragraph means that the invention-creation granted a patent does not conform to the provisions of Articles 2, 20, paragraph 1, 22 and 23 of the Patent Law; The provisions of paragraphs 3 and 4 of Article 26, paragraph 2 of Article 27, article 33 or paragraph 2 of Article 20 and paragraph 1 of Article 43 of these Detailed Rules either belong to the provisions of Articles 5 and 25 of the Patent Law, or the patent right cannot be obtained according to the provisions of Article 9 of the Patent Law.
2. What are the reasons why the patent right is invalid?
(a) the invention-creation does not meet the substantive conditions for granting the patent right.
An invention-creation that has been granted a patent right must have the substantive elements of granting a patent right if it is not novel, creative and practical; Where the design granted a patent right is not novel and creative, and conflicts with the prior rights of others, it may request that the patent right be declared invalid. Prior rights include trademark right, copyright right, enterprise name right, portrait right, unique packaging or decoration use right of well-known goods, etc.
Where a patent design is requested to declare the patent right for a design invalid on the grounds that it conflicts with the legal rights previously obtained by others, an effective judgment or ruling that can prove the conflict of rights shall be submitted.
(two) the invention does not meet the conditions of legality.
Article 5 of China's Patent Law stipulates that "no patent right shall be granted for inventions and creations that violate national laws, social morality or harm public interests". If in fact China National Intellectual Property Administration grants a patent right to an invention that violates the statutory conditions, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid.
(3) Invention-creation belongs to the field where no patent right is granted as stipulated in the Patent Law.
That is, the invention-creation granted a patent right belongs to the fields of scientific discovery, laws and methods of intellectual activities, methods of diagnosis and treatment of diseases, animal and plant varieties and substances obtained through nuclear transformation as stipulated in Article 25 of the Patent Law.
(four) the writing of patent documents does not meet the statutory requirements.
There are two main situations in which patent documents do not meet the statutory requirements: one is that the description of the invention or utility model for which a patent is applied does not give a clear and complete description of the invention or utility model, which makes it impossible for ordinary technicians in their technical fields to realize it; The other is that the modification or divisional application of the patent application document for a patent invention or utility model is beyond the scope of the original specification and claims; The modification of the application document for a patent for design is beyond the scope of the original picture or photograph.
(5) The subject of patent right is illegal.
That is, in violation of the principle of first application stipulated in Article 9 of the Patent Law, the applicant obtains the patent right for the same invention-creation.
In judicial practice, criminals use patent infringement to obtain illegal benefits. In this case, the rights and interests of the patentee will inevitably be seriously violated. The handling of the relevant situation should be handled in strict accordance with the procedures prescribed by law. If the handling of the relevant situation is not clear, you can consult a lawyer to define it.