Interpretation For The Systems Of The Effectiveness Of The Patent Invalidation Declaration

As the review of patent novelty cannot utilize all the existing technology and the subjectivity of creative judgment inevitably leads to the misappropriation of patents,patent invalidation system has become a separable part of patent law.The validity of the patent invalidation system refers to whether the legal relationship is retrospective that occurred during the continued existence of the validity of the patent after the patent has been declared invalid.In China's "Patent Law" Article 47,there is three provisions to regulate the validity of the patent invalidation system,in which The first provision stipulates that "it is impossible to declare invalidity of a patent",the remaining two stipulates retroactive effect during the continued existence of the validity of the patent,where the first half of the second provision stipulates the requirements of non-retroactive effect,the second half stipulates the exceptional requirements of non-retroactive effect.Although the Patent Act 47 clearly stipulates the validity of the patent invalidation declaration,it may lead to a total violation of the particularity of the patent system itself,if you apply directly other legal areas to interpret the specific definitions of stipulation of non-retroactive effect and its exceptional requirements.To this end,the meaning of the particular concept should be explained on the basis of the particularity of the patent system itself,among which the "implementation" should respect the objective process,in other words,the executor who is able to perform but refuses to perform should be explained implementation;the executor should continue to perform,even if the patent has been declared invalid;the performance has been carried out,it should not be explained in accordance with implementation theory in the contract law;the case shall also be deemed to have been implemented where the patentee as the assignor and licensor have acted the transfer of the patent or the licenseable patent;the assignee or the licensee shall continue to perform the obligation to pay the transfer and the license fee;"malignity" is defined for the patentee.In the application process,the favorable position of the patentee should be taken into account and "patent" infringement of the interests of one party should be strictly judged the protected.In addition to the fraud of patentee in the patent application process of fraud explained as malignity as well as the applied patten that the patentee know that it belongs to the technology in public domain.For the interpretation "that obviously violates the principle of fairness",should be explained in two cases including patent infringement compensation,patent royalties and patent transfer fees;for patent compensation if the infringer can prove that he does not gain benefits or the benefits that are less than the amount paid for the payment of tort based on patent infringement profits in the patent infringement period,which should be interpreted as "a clear violation of the principle of fairness" after the invalidation of the patent and infringement compensation should be returned or partially returned;the patent license fee can take the time of patent invalidation as its node.If the use time agreed upon in the license contract exceeds that of the patent invalidation declaration,the license fee is a clear violation of the principle of fairness and should be returned.For patent transfer fees,If the remaining time of the patent protection period calculated on the basis of the time in the patent transfer contract,exceeds transfer fee calculated on the basis of the signed patent transfer contract on the occasion of the patent invalidation is a clear violation of the principle of fairness and should be returned.