Is it OK for patentee to work hard and apply for patent successfully? In fact, this is not the case. According to the law of our country, a closely related third party can apply for invalid patent. If the patent should not be granted, the patent right is invalid. How to obtain evidence when applying for invalid patent?
Answer questions: how to collect evidence of invalid patent applications?
The evidence provided by the parties plays a decisive role in the invalidation of the patent application as follows:
（1） Collect evidence that the subject matter does not meet the conditions for patent grant, including: the subject matter of the invention or utility model does not possess novelty, inventiveness or practicability; The subject matter of a design patent does not possess novelty or conflicts with the legal rights previously obtained by others.
（2） If a party submits evidence in a foreign language, it shall submit a Chinese translation; If the Chinese translation is not submitted within the time limit for adducing evidence, it shall be deemed that the foreign language evidence has not been submitted, and both parties shall submit the Chinese translation in writing. If the Chinese translation is not submitted in writing, it shall be deemed that the Chinese translation has not been submitted.
（3） Collecting illegal evidence in patent application: the description does not fully disclose the invention or utility model; The patent claim is not based on the specification; Where the modification of the patent application documents is beyond the prescribed scope; The subject matter of the patent does not conform to the definition of invention, utility model or design; The principle of simultaneous application of negotiation authorization; The claims of the authorized patent are not clear, concise or possess the technical features necessary to solve the technical problems.
（4） The parties concerned can only submit part of the evidence in Chinese in a foreign language, and the part of the evidence in a foreign language that has not submitted a Chinese translation shall not be used as evidence. However, the parties concerned shall, at the request of the Patent Reexamination Board, supplement the foreign Chinese translation of other parts of the evidence submitted.
（5） Collect evidence of violation of mandatory provisions of law, including: violation of national laws, social morality or damage to public interests; Scientific discoveries and other legal provisions do not grant patent rights.
（6） If the other party has any objection to the content of the Chinese translation, it shall submit the Chinese translation of the dissenting part within the prescribed time limit. If the Chinese translation is not submitted, it shall be deemed that there is no objection.
（7） Collect evidence 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, that is, only one person (the first applicant) shall be granted the patent right for an invention creation. Where an invention, utility model or design cannot be patented under the above circumstances and has already been patented, it may be declared invalid.
Patent laws of the people's Republic of China
Article 9 only one patent right can be granted for the same invention creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention and creation on the same day, the first obtained utility model patent right has not been terminated, and the applicant declares to give up the utility model patent right, the invention patent right may be granted.
Where two or more applicants apply for a patent for the same invention creation respectively, the patent right shall be granted to the person who first applied for the patent.
Article 22 An invention or utility model for which a patent right is granted shall possess novelty, creativity and practicability.
Novelty means that the invention or utility model does not belong to the prior art; No entity or individual has applied to the administrative department for patent under the State Council for the same invention or utility model before the date of application, and it is recorded in the patent application documents published after the date of application or the patent documents announced.
Creativity means that the invention has prominent substantive features and significant progress compared with the prior art, and the utility model has substantive features and progress.
Practicability means that the invention or utility model can be manufactured or used, and can produce positive effects.
The term "prior art" as used in this Law refers to the technology known to the public at home and abroad before the date of application.
Article 47 of the patent law of the people's Republic of China
The patent right declared invalid shall be deemed to be nonexistent from the beginning.
The decision to declare a patent right invalid shall not have retrospective effect on the judgment and mediation statement of patent infringement made and executed by the people's court before the declaration of patent right invalid, the decision to settle a patent infringement dispute that has been fulfilled or enforced, and the patent license contract and patent right assignment contract that have been fulfilled. However, compensation shall be made for the losses caused to others by the patentee's malice.
If, in accordance with the provisions of the preceding paragraph, the compensation for patent infringement, patent royalty and patent right transfer fee are not returned, which obviously violates the principle of fairness, they shall be returned in whole or in part.
There are two interpretations of patent specification in broad sense and narrow sense. Broad sense patent specification refers to all kinds of Specifications issued by national patent office or International Patent Organization, including application specifications without patent examination, such as German public specification, Japanese patent bulletin, Chinese invention patent application public specification, etc; And patent specifications that have been subject to patent examination in the United States, the former Soviet Union and China. Patent specifications are the main body of patent documents. Their main function is to disclose new technical information on the one hand and determine the scope of legal protection on the other. Only in the patent specification can we find all the technical information of the patent application and the accurate legal information of the scope of patent protection. In a narrow sense, the patent specification refers to the patent specification which has been examined and granted the patent right.
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