What is to declare a patent invalid and apply for a patent invalid in the course of litigation?

1. What is the patent right to declare a patent invalid? After the patent administration department of the State Council grants and announces, if any unit or individual thinks that the patent right is not in conformity with the Patent Law of People's Republic of China (PRC) and its detailed rules for implementation, it may, from the date of announcement, request the the State Council Patent Reexamination Board to declare the announced patent invalid. The invalidation of the patent right shall be made by the Patent Reexamination Board and registered and announced by the patent administration department of the State Council. The applicant shall file a written application for invalidation of the patent right with the the State Council Patent Reexamination Board, and attach relevant evidence in duplicate. The application shall specify the reasons for invalidation and indicate the evidence on which each reason is based.

Second, how to deal with the invalid patent application in the process of litigation. According to the progress of litigation, the treatment scheme of invalidation of patent application is different, as follows:

1. If the defendant requests to suspend the litigation in the dispute case of infringement of the patent right of utility model or design, he shall request to declare the plaintiff's patent right invalid within the defense period.

2, the people's court accepted the infringement of the patent right of utility model and design dispute cases, the defendant in the defense period to declare the patent right invalid, the people's court shall suspend the proceedings, but in any of the following circumstances, you can not suspend the proceedings:

(1) The search report issued by the plaintiff did not find any technical documents that led to the loss of novelty and creativity of the utility model patent;

(2) The evidence provided by the defendant is sufficient to prove that the technology used is known;

(3) The evidence or reasons for the defendant's request to declare the patent right invalid are obviously insufficient;

(4) Other circumstances in which the people's court considers that the lawsuit should not be suspended.

3, the people's court accepted the infringement of the patent right of utility model and design dispute cases, the defendant after the expiration of the defense period request to declare the patent right invalid, the people's court shall not suspend the proceedings, but after examination that it is necessary to suspend the proceedings.

4. The people's court accepts cases of infringement of the patent right for invention or utility model or design confirmed by the Patent Reexamination Board. If the defendant requests to declare the patent right invalid during the defense period, the people's court shall not suspend the lawsuit.

5. When the people's court hears a civil case of patent infringement, if the party refuses to accept the decision of the Patent Reexamination Board to declare the patent invalid or maintain the patent right, and brings an administrative lawsuit to the people's court according to law within the statutory time limit, the civil case of patent infringement shall not be suspended. However, according to the existing evidence, if the people's court accepting the civil case of patent infringement thinks that the continuation of the trial may conflict with the judgment result of the relevant patent administrative case, it may also suspend the lawsuit upon the written application of the parties.