Why is the patent invalid? How long will the patent invalidation take?

Why is the patent invalid? How long will the patent invalidation take? After the grant of the patent right, if it is found that it does not meet the requirements and conditions of relevant laws, the patent shall be reexamined to confirm and issue a declaration of its invalidity, and it shall be deemed that the patent right does not exist. What circumstances in the patent application will determine that the patent is invalid

1. The subject matter does not meet the conditions for patent granting, including: the subject matter of the invention or utility model does not possess novelty, inventiveness or practicality; The design patent is also or conflicts with the legal rights acquired by others earlier;

2. Illegality in patent application: the specification does not fully disclose the invention or utility model; The patent authorization request is not based on the specification; The amendment of the patent application document exceeds the prescribed scope; The subject matter of the patent does not conform to its definition; Technical problems such as unclear records in the requirements;

3. Violation of mandatory provisions of laws, including: violation of national laws, social morality or violation of public interests; There are also legal provisions such as scientific discovery.

4. The case of repeated authorization: if two or more applicants apply for a patent for the same invention creation respectively, the patent right shall be granted to the first applicant.

For patents with valid patents and invalid patents, any patent that wants to be protected needs to pass the corresponding patent examination, and the examination of this patent also has the corresponding time limit. How long will the patent invalidation take?

Article 45 of the Patent Law stipulates: "From the date when the State Intellectual Property Office announced the grant of the patent right, any entity 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." In order to maintain the seriousness of the Patent Law and safeguard the interests of the general public, China's patent law has set up a "patent invalidation procedure" in the patent examination procedure. Where a person who requests invalidation of a patent right requests invalidation or partial invalidation of a patent right, he shall submit to the Patent Reexamination Board a "Request for Invalidation of Patent", stating the reasons, and when necessary, shall attach relevant supporting documents and facts on which the explanation is based. Where the request for invalidation of a patent right does not conform to the prescribed format, the petitioner shall make corrections within the time limit specified by the Patent Reexamination Board; If no correction is made within the time limit, the request for invalidation shall be deemed to have been withdrawn. The Patent Reexamination Board shall examine the request for invalidation of the patent right, make a decision and notify the applicant and the patentee. The decision to declare the patent right invalid shall be registered and announced by the State Intellectual Property Office of China. If he is not satisfied with the decision of the Patent Reexamination Board declaring the patent right for invention invalid or maintaining the patent right, he may, within three months from the date of receiving the notification, institute legal proceedings in the people's court.

According to the requirements of the Rules for the Implementation of the Patent Law, the request for invalidation shall be made in writing. Pay attention to the following points when writing this part:

1. Fully discuss the reasons for invalidity in combination with evidence

In the discussion, we must take facts as the basis and laws as the criterion, specifically discuss the reasons why the invention creation should not be granted a patent right, and remember not to simply list the evidence and reasons without specifying the evidence on which each reason is based, nor can we just state the evidence on which the basis is based without specifying why the right can be declared invalid based on the submitted evidence.

2. The reasons for invalidation should be supported by evidence

The agent should first judge the evidence, then determine the appropriate reasons based on the evidence, and discuss around the reasons. For example, if the evidence is the same reference document as the patent disclosed after the application date for the application filed before the application date, then different reasons should be selected for different patent invalidation requests. For invention or utility model patents, the provisions of Article 22 of the Patent Law shall be followed, and for design patents, the provisions of Article 23 of the Patent Law shall be followed. The agent shall also determine the evidence to be used according to the reason. For example, the reference document submitted before the above application date and disclosed after the application date cannot be used as the reference document for evaluating creativity.

3. Grasp the key points when discussing

When discussing, the agent must grasp the key and vital points, analyze and discuss pointedly, be clear and logical; Do not spend a lot of the time on content unrelated to invalid reasons.

As the party requesting invalidation, the most important thing to win the final victory is to choose the reasons for invalidation and find the evidence for invalidation. The reasons for invalidation are often based on the evidence available and experience. Therefore, the proverb "evidence is king" in legal practice also applies to cases of invalidation claims. With the in-depth development of the network era, the identification and use of network evidence should also attract the attention of the parties and patent agents due to the characteristics of network informatization of evidence.