Article 46 The Patent Reexamination Board shall promptly review and make a decision on a request to declare the patent right invalid, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.
Anyone who is dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or to maintain the patent right may file a lawsuit in the People's Court within three months from the date of receipt of the notice. The people's court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party.
Interpretation This article is about the procedures for the Patent Reexamination Board to make decisions on requests to declare patent rights invalid and the judicial relief provisions for dissatisfaction with the decision of the Patent Reexamination Board.
1. In accordance with the provisions of paragraph 1 of this article, the Patent Reexamination Board’s request for patent invalidation shall be handled according to the following procedures:
1. Requests for patent invalidation shall be reviewed promptly. In accordance with the provisions of the Implementing Rules of the Patent Law, the Patent Reexamination Board's examination of a request to declare a patent right invalid includes formal examination and substantive examination. The formal review of a patent invalidation request mainly examines whether the request for invalidation conforms to the prescribed format, whether the request states the facts and reasons on which the request for invalidation is based, and whether the reasons proposed comply with Article 45 of this Law. provisions of the article. If the request does not comply with the prescribed format, the Patent Reexamination Board shall require the requester to make corrections within the specified time limit. If the request is not made or corrected within the specified time limit, the request for invalidation shall be deemed not to have been made. If the facts and reasons on which the request is based are not stated in the request, or the reasons proposed do not comply with the provisions of this Law, the Patent Reexamination Board will not accept the request. The Patent Reexamination Board shall send a copy of the request for invalidation and copies of relevant documents received to the patentee and require it to state its opinions within a specified time limit. The patentee may modify the patent document, but may not expand the scope of protection of the original patent right; if the patentee fails to respond within the specified time limit, it will not affect the hearing of the Patent Reexamination Board. The substantive examination of a patent invalidation request refers to examining whether the reasons for invalidating a patent right are valid, that is, examining whether the patent right requested to be invalidated does not meet the authorization conditions stipulated in the law, including examining whether the patent right is granted. Whether the invention and utility model meet the standards of novelty, creativity and practicality; whether the design for which the patent is granted is the same as or similar to the design that has been published or publicly used before the filing date; whether the invention for which the patent is granted Whether the creation is illegal, violates public ethics and harms the interests of the public; etc. After receiving a request to declare the patent right invalid, the Patent Reexamination Board shall conduct a timely review in accordance with the provisions of this article, improve the efficiency and quality of the review work, handle patent disputes in a timely manner, and safeguard the rights and interests of the parties involved.
2． After the Patent Reexamination Board has completed its review of the request to declare the patent invalid according to law, it shall make a decision in a timely manner. If the reasons for invalidating the request are confirmed upon examination to be valid, a decision shall be made to invalidate or partially invalidate the patent right based on different circumstances; if the reasons for invalidating the request for instructions are confirmed to be invalid after examination, a decision shall be made to maintain the patent right.
3． After the Patent Reexamination Board makes a decision on a request to declare the patent right invalid, it shall promptly notify the requester and the patentee. The decision to declare a patent invalid shall be registered and announced by the patent administration department of the State Council to make the public aware. In accordance with the provisions of Article 47 of this Law, a patent right declared invalid shall be deemed to be invalid from the beginning.
2. Paragraph 2 of this Article stipulates the judicial relief procedures for parties dissatisfied with the reexamination decision of the Patent Reexamination Board. That is, after the petitioner and the patentee receive the notice of the Patent Reexamination Board's examination decision, if they are dissatisfied with the decision made by the Patent Reexamination Board, they may file a lawsuit against the People's Republic of China with the Patent Reexamination Board as the defendant within three months from the date of receipt of the notice. A lawsuit was filed in court. Since the outcome of the case handled by the People's Court has an interest in the other party in the invalidation request procedure, the People's Court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party in accordance with the law.
That is, if the person who filed the invalidation request is dissatisfied with the reexamination decision made by the Patent Reexamination Board and files a lawsuit in court, the People's Court shall notify the patentee to participate in the litigation as a third party; if the patentee files a lawsuit against the patent declaration made by the Patent Reexamination Board, If a person is dissatisfied with the decision to invalidate or partially invalidate the rights and files a lawsuit in court, the people's court shall notify the party who requested the invalidation to participate in the litigation as a third party. If the party concerned does not file a lawsuit within the stipulated time, the review decision of the Patent Reexamination Board will become effective.
According to the provisions of the Patent Law before this revision, only if a party is dissatisfied with the Patent Reexamination Board’s reexamination decision on a request to declare an invention patent invalid, they can sue the court and request judicial relief; and patents The reexamination decision made by the reexamination committee on a request to declare the utility model or design patent right invalid is final. If the party is dissatisfied, it cannot bring a lawsuit to the court. Considering that utility model and design patent rights are the same as invention patent rights, they are the civil rights of the parties and should be protected as one; the party concerned is dissatisfied with the review decision of the patent review committee established by the patent administration department on the utility model patent right and the design patent right. , should have the right to request judicial relief just like invention patents. This is also a principle stipulated in the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights. For this reason, this revision deletes the provision in the original Patent Law that the decision of the Patent Reexamination Board on a request to declare utility model and design patent rights invalid is final. If the parties are dissatisfied, they can file a lawsuit in the People's Court. , requesting judicial relief.