What is a patent invalidation search? Patent invalidation search review

Legal basis

Invalidation basis: According to Article 45 of the Patent Law of the People's Republic of China: From the date on which the patent administrative department of the State Council announces the grant of a patent right, any unit or individual who believes that the grant of the patent right does not comply with the relevant provisions of this Law may request the Patent Reexamination Board to declare the patent right invalid.

The specific legal provisions that can be invalidated are derived from the Implementing Rules of the Patent Law: According to Article 45 of the Patent Law, if a patent right is requested to be declared invalid or partially invalid, a request for invalidation of the patent right and necessary evidence in duplicate shall be submitted to the Patent Reexamination Board. The request for invalidation shall, in conjunction with all the evidence submitted, specify the reasons for the request for invalidation and indicate the evidence on which each reason is based.

The grounds for the request for invalidation as mentioned in the preceding paragraph mean that the patented invention-creation does not comply with the provisions of Article 2, paragraph 1 of Article 20, Article 22, Article 23, paragraph 3, paragraph 4, paragraph 2 of Article 26, Article 33 of the Patent Law or paragraph 2 of Article 20 and paragraph 1 of Article 43 of these Rules, or falls under the provisions of Article 5 or Article 25 of the Patent Law, or cannot obtain a patent right in accordance with Article 9 of the Patent Law.

Article 22 of the Patent Law specifically stipulates that inventions and utility models granted patent rights must possess novelty, creativity and practicality.

Novelty means that the invention or utility model does not belong to the existing technology; nor has any unit or individual applied to the patent administration department of the State Council for the same invention or utility model before the application date, and it is recorded in the patent application documents published after the application date or the published patent documents. Creativity means that compared with the existing technology, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress. Practicality means that the invention or utility model can be manufactured or used and can produce positive effects. The existing technology referred to in this Law refers to the technology known to the public at home and abroad before the application date.

The above-mentioned law states that the comparative document can be either the prior art or the conflicting patent application document (a Chinese patent document filed before the application date of the patent to be invalidated and published after the application date of the patent to be invalidated, i.e. "first application, later publication"). Using the prior art or conflicting application document (generally through searching, only a few comparative documents are selected) to challenge the patented claims can only be the novelty and creativity involved in Article 22 of the Patent Law. In the process of invalidation, due to many disputes, the Supreme People's Court has issued a series of interpretation measures. The restrictive effect of these interpretations needs to be considered when invalidating, especially for the interpretation of the claims. For specific content, please refer to the judicial interpretation.

way

Invalidating a patent is difficult for ordinary companies or individuals if they do not have the corresponding knowledge reserves, especially long-term search training and understanding of novelty and creativity. Generally speaking, many companies or individuals choose patent firms/agents (such as Chaofan, Liushen, Jijia in China, and CPA Global abroad) or individuals with certain professional experience and low fees, Taobao merchants, etc. to provide corresponding legal services.

Success rate

Historical statistics show that the success rate of invalidation of Chinese invention patents is 42% (patentics statistics), while that of US patents reaches 80%.

References