Analysis Of The Dispute About The Invalidation Of The Utility Patent Right Of A Company

The existing laws provide lower standard of creativity and simpler examinationprocedures of utility model patent than invention model patent. The examiner inpatent administrative practice have no consistent standard of examination and thequality of utility model patent is not high and the patent right is not stable, because ofthe lower standard of creativity and the looser examination procedures. There is nosubstantive examination for utility model patent at the application stage. Theexamination of creativity almost entirely depends on the invalidation procedure. Asthe last procedure to examine the patentability of utility model patent, it is necessaryto further clarify the principle and standard of creativity examination at theinvalidation procedure. Sample case is a utility model patent invalidation casesinvolving State Intellectual Property Office Review Committee. The separatedistinguishing features were the subject of intense debate between the applicant andthe patentee. The Review Committee declared according to the evidences andopinions provided by both parties. On one hand, the focus of dispute in this case handin how to judge the creativity of distinguishing characteristics. On the other hand, itlies in how to judge the creativity of the technical scheme of the whole patent. Thejudgment of the creativity of distinguishing characteristics based on the subjectivity ofexaminer. And the judgment of the creativity of the technical scheme of the wholepatent dos not supported by the overall evaluation theory. Because the judgment ofcreativity itself has very strong subjectivity, we must make the objective criteria tojudge the level of creativity. In addition, patent protect the whole technical scheme. Toaccurately judge the creativity of whole technical scheme, we must have an overallevaluation theory as the support and guidance...