Research On The Application Conditions For Patent Invalidation

The declaration of patent invalidity is an indispensable system in the patent law,which has caused widespread concern and heated discussion during the previous revision of the patent laws.The status and role of this system is becoming increasingly clear and important through the improvement of the patent law system.However,the declaration procedure of patent invalidity has some functional alienation problems under the existing patent system.The most common one is that the procedure has become a means of delaying patent infringement litigation,thereby increasing the litigation costs of the parties and expanding the infringement damage.Considering the institutional conversion costs of transforming the existing architecture and other possible problems of acclimatization,it is a simple and feasible method to set the Application Conditions for Patent Invalidation.The patent invalidation is stipulated in Article 45 of the Patent Law,which refers to the process of declaring the invalidity of an authorized patent that does not comply with the relevant laws and regulations,through the application of any unit or individual.The design of the starting conditions is the standard judged by the Patent Reexamination Board to determine whether to accept the application.In a nutshell,a well-designed invalidation initiation condition includes the accurate application of the principle,the clear definition of the applicant,the flexibility of the invalid reason and the reasonableness of time.Accordingly,the paper mainly includes four parts:The first part is mainly an overview of the application conditions for invalidation of patent rights,demonstrating progressively from the definition of the application conditions for invalidation to the necessity of its design,and the principle that should be followed when setting the conditions for invalidation application.The second part starts from the legislative provisions,and introduces in detail the application principle,application subject,application reason and application time of the patent invalidation,and analyzes their respective problems one by one.In general,they include the applying drawbacks of the principle of non bis in idem,the broadness of the applicant,the rigescent mode of the reasons for application,and the unrestricted application time.The third part introduces many foreign legislations and practice,as well as the implications,which will provide useful reference for China to improve the patent invalidation system.In the United States,similar regulations are representative of the post-grant review and the inter-parte review.There is a nine-month limit to distinguish the overall reasons and just “Novelty” and “Unobviousness”.In Japan,it has continuously revised and improved the post-grant opposition procedure,and finally established the application time limit of 6 months from the date of publication of the patent gazette.The expiration can only be resolved through the procedure of patent invalid trial.Because of its Quasi-judicial nature,the applicant actually has the restriction of "interested".In Germany,it is divided into opposition procedure and the patent invalidation procedure,which also sets the time limit,and the provisions on the reasons for invalid patents are quite limited and the attitude is very prudent.The last part provides legislative improvement suggestions for the application conditions for the patent invalidation in China.When designing the eligibility criteria of the patent invalidation procedure,it must be divided into four aspects: the principle requirement,the subject of invalid application,the reason for invalidity of application,and the period of invalid application.Specifically,refining the applicable standards about the principle of non bis in idem to solve the problem of inconsistency in practice,including loosening the understanding of the “one thing” and allocating reasonably the obligation to illustrate it.When judging whether the reason and the evidence belong to the "same",it should be based on its substantive content rather than its manifestation.In addition,the parties need to explain and respond to their respective "one thing" claims,thereby helping the judgment of the administrative organ.For the scope of the applicant,it is advisable to impose restrictions on the “interested person”.On the one hand,it helps to prevent the malicious patentee from using the principle of non bis in idem to validate the invalid patent.On the other hand,it can also reduce the meaningless repeated application,avoid waste of administrative resources and improve administrative efficiency.As far as China's current invalid reasons are concerned,it should be more flexible and scientific,it's to say,different propensity should be taken into consideration at different times after the grant of patents,and adopt scientifically and rationally different modes of invalid reasons.The time limitation is related to the stability of patents.The longer the time is,the longer the patent is in an unstable state,which is likely to have an adverse effect on its transformation.Moreover,following the legislative spirit of prescription system,reasonable interval should be set aside for the application time of the invalidation.