Patent invalidation

Patent invalidation

        Definition

        Since the date of the patent office announcement granting patent rights, any unit or individual who believes that the grant of the patent rights does not comply with the relevant provisions of the Patent Law may request the Department of Patent Review and Invalidation to declare the patent rights invalid or partially invalid. The invalidation claimant has one month from the date of filing the request for invalidation to add reasons and submit new evidence, otherwise, it can be disregarded. Invalidated patent rights are deemed to have ceased to exist from the beginning. The purpose of the national patent invalidation procedure is to correct possible wrong authorizations made by the national patent administration in order to maintain the seriousness of the law and the interests of the general public.

          Common grounds for patent invalidation

1. The subject matter of the patent right granted does not meet the definition of invention, utility model, or design under the Patent Law;

2. Violation of national laws, social morality or prejudice to the public interest, or the completion of the invention depends on the violation of laws, administrative regulations and the acquisition or use of genetic resources;

3. The granting of such patent rights would result in the granting of duplicate patent rights for the same inventions, or the applicant for the patent rights is not the first person to file a patent application for the same inventions;

4. Violation of the provisions of Article 21 of the Patent Law, that is, the invention or utility model is completed in China, the patentee did not request the State Intellectual Property Office to conduct a confidential examination before filing an application in a foreign country;

5. Inventions and utility models granted with patent rights do not possess novelty, inventiveness and practicality

6. The design for which a patent is granted is an existing design; or another entity or individual has filed an application for the same design with the patent administration department of the State Council prior to the filing date and recorded in a patent document published after the filing date; the design for which a patent is granted is not significantly different from an existing design or a combination of existing design features, or is in conflict with the legal rights of others that have been obtained prior to the filing date the design is not significantly different from an existing design or combination of existing design features, or conflicts with the legal rights of others acquired prior to the filing date;

7. The subject matter of the patent right granted is not patentable as stipulated in Article 25 of the Patent Law;

8. The specification of the invention or utility model does not fully disclose the invention or utility model, and the claims do not clearly and briefly limit the scope of the claimed patent protection on the basis of the specification;

9. The design patent document does not comply with the provisions of Article 27(2) of the Patent Law, i.e., the picture or photograph does not clearly show the design of the product claimed to be protected by the patent;

10. The modification of the invention or utility model patent application document exceeds the scope of the original specification and claims, or the modification of the design patent application document exceeds the scope of the original picture or photograph; 

11.The independent claims do not reflect the technical solution of the invention or utility model as a whole and record the technical features necessary to solve the technical problem.