If your patent is declared invalid, then according to the provisions of the patent law, this patent does not exist from the beginning, that is, your patent is considered to have never taken effect.
Therefore, you can't claim your rights with "effective" before it is invalid.
If the other party's patent right is stable, then you will bear the tort liability.
If you don't want to be sued for infringement, you can use the following methods:
1. Check whether there is enough evidence and reason to declare the patent right of the other party invalid.
2. If the other party's patent right is stable, it can request patent license and continue to produce, implement and sell patented products.
Supplement:
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.
According to Article 64 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC), the "cause of request for invalidation" of a patent right is a "situation" that leads to the invalidation of the patent right, including the following aspects:
1. The theme does not meet the conditions for patent grant, including: the theme of the invention or utility model is not novel, creative or practical; The theme of the design patent is not novel or conflicts with the legal rights previously obtained by others.
2. Illegal situation in the patent application: the description does not fully disclose the invention or utility model; The claim is not based on the specification; The modification of the patent application documents is beyond the prescribed scope; The subject matter of the patent right does not conform to the definition of invention, utility model or design; Principle of consultation authorization for simultaneous application; The claim is unclear, not concise or lacks the necessary technical features to solve its technical problems;
3. Violation of the mandatory provisions of the law, including: violation of national laws, social ethics, or circumstances that hinder public interests; Scientific discoveries and other legal provisions do not grant patent rights; 4. Repeated authorization: If two or more applicants apply for a patent for the same invention-creation, the patent right will be granted to the first applicant, that is, an invention-creation will only be granted to one person (the first applicant). Inventions, utility models and designs cannot be patented under the above circumstances, and those that have been patented may be declared invalid.
If your patent application fails, but someone else applies, I suggest you take legal channels. If you have any other questions, please come for online legal consultation, and we will have professional laws to help you.
Extended reading:
What are the contents of the merger after the conclusion of the patent transfer contract
How does the law provide for compulsory licensing of patents?
Ways of applying for patent right