The decision to declare the patent right invalid has no retrospective effect on the judgments and rulings of patent infringement made and executed by the people's court before the patent right is declared invalid, the decisions on handling patent infringement disputes that have been performed or executed, and the patent licensing contracts and patent transfer contracts that have been performed. However, if the patentee's malice causes losses to others, it shall make compensation.
In accordance with the above provisions, if the patentee or the patentee's transferor fails to return the patent royalty or patent transfer fee to the licensee or the patentee, which obviously violates the principle of fairness, the patentee or the patentee's transferor shall return all or part of the patent royalty or patent transfer fee to the licensee or the patentee's transferee.
It can be seen that the legal consequences of declaring a patent invalid are quite serious. For patent applicants, it is necessary to do a good job in the preliminary work of patent application, such as patent literature inquiry, novelty retrieval, market research and so on.
Patent reexamination and invalidation
China's patent law stipulates that inventions must be novel, creative and practical, and well-known technologies cannot be patented. In the examination of patent substance, due to the complexity of specific technology and the limitation of literature retrieval, it is inevitable that individual applications without patent conditions will be granted patent rights. To this end, the Patent Law stipulates the procedure for declaring a patent invalid: any unit or individual who thinks that the grant of a patent does not conform to the relevant provisions may submit evidence to the Patent Reexamination Board of the State Intellectual Property Office, re-examine the patent, and then declare the patent invalid.
Invalid request related to conflicting application.
The request for invalidation related to the conflict application shall include three well-known evidence elements:
The publication date is before the patent application date;
The content disclosed is the same theme or substantive content as the patent (such as the same technical field, invention purpose, technical scheme, expected effect, etc.). );
The publicity made can be known to the public.
That is to say, where, when, who, how to disclose what or how to disclose it.
Provisions on amending patent documents in invalidation declaration
In the Patent Examination Guide, it is stipulated that the modification of patent documents in the invalidation procedure is:
1. Principles of modification
The modification of the patent document for invention or utility model is limited to the claims, and its principle is:
(1) The subject name of the original claim shall not be changed;
(2) Compared with the authorized claim, the protection scope of the original patent shall not be expanded;
(3) It shall not exceed the scope recorded in the original specification and claims;
(4) In general, technical features not included in the authorization claim shall not be added. The patentee of an appearance patent may not modify its patent documents.
Step 2 modify the method
On the premise of meeting the above-mentioned modification principles, the specific ways to modify the claims are generally limited to the deletion and merger of claims and the deletion of technical solutions. The deletion of claims refers to the deletion of one or several claims from the claims. Claim combination refers to the combination of two or more unrelated claims but subordinate to the same independent claim in the text of authorization announcement, and all the technical features of the combined subordinate claims are combined to form a new claim. In the case that the independent claim has not been modified, it is not allowed to modify its subordinate claims in a combined way. Deleting a technical solution means deleting one or more technical solutions from two or more technical solutions juxtaposed in the same claim.
3. Revision time
Before the Patent Reexamination Board makes a review decision, the patentee may delete the claim or the technical scheme contained in the claim. The patentee can only modify the claim through merger within the defense period of the following three situations:
(1) Invalid declaration request;
(2) Supplementary reasons for invalidation or supplementary evidence against the claimant;
(3) The reasons or evidence for invalidation put forward by the Patent Reexamination Board not mentioned by the claimant.