Article 48 of the Chinese Patent Law stipulates: "Where, after the expiration of six months from the date of the announcement of the grant of the patent right by the Patent Office, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid." In order to maintain the solemnness of the Patent Right and to protect the interests of the general public, the Chinese Patent Law has set the "Procedure of Declaring the Invalidation of Patent Right".
Where the applicant for the invalidation of patent right requests the declaration of the invalidation or partial invalidation of a patent right, he shall submit to the Patent Reexamination Board an "Application for the Declaration of the Invalidation of Patent Right", stating the grounds, together with relevant supporting materials and a statement re the facts on which the grounds are based. All these documents shall be in duplicate. Before the Patent Reexamination Board makes the decision, the applicant declaring the patent right invalid can withdraw his application.
Where the form of the application for the declaration of the invalidation of patent right is not in conformity with that as provided for, the applicant shall make corrections thereof within the time limit specified by the Patent Reexamination Board; where the corrections are not made within the specified time limit, the application shall be deemed to have been withdrawn.
According to the provision of Rule 66 of the Implementing Regulations of the Chinese Patent Law, for patent right that has been granted by the Chinese Patent Office, the grounds for raising the request for declaring invalidation thereof are directed at the invention-creation that has been granted patent right but is not in conformity with:
1. The provisions of Articles 22 and 23 of the Patent Law (novelty, inventiveness, practical applicability);
2. The provisions of Item 3 (requirements on the drafting of the specification) and Item 4 (requirements on the drafting to the claims) of Article 26 of the Patent Law;
3. The provision of Article 33 of the Patent Law (amendments shall not go beyond the scope of the original documents);
4. The provision of Rule 2 of the Implementing Regulations of the Patent Law (the definitions on invention, utility model and design patents);
5. The provision of Rule 12 of the Implementing Regulations of the Patent Law (repeated grant of right);
6. The provisions of Article 5 and 25 of the Patent Law (the scope where no patent right shall be granted);
7. The provision of Article 9 of the Patent Law (patent right shall be granted to the party who is the first to file the application for patent).
Where the facts and grounds taken as bases or the grounds declared by the applicant in the "Application for the Declaration of Invalidation of Patent Right" are not in conformity with the above provisions, or where a request for administrative revocation of patent right has been raised, but before a decision is made thereon, a request is made again for the declaration of invalidation, or where a decision on the request for administrative revocation or on the request for declaration of invalidation of patent right has already been made, another application for invalidation of patent right based on the same facts and the same grounds is again made, the Patent Reexamination Board will not accept these applications.
The Patent Reexamination Board will dispatch copies of the application for declaration of invalidation of patent right and the relevant documents to the patentee, asking him to make observations within the specified time limit. The patentee may amend the patent documents, but the amendments shall not go beyond the scope of the original scope of protection. Where no response is made before the expiration of the time limit, the examination conducted by the Patent Reexamination Board will go on unhindered.
The Patent Reexamination Board examines the application for declaration of invalidation of patent right, makes a decision, and notifies the applicant and the patentee. The decision declaring the invalidation of the patent right shall be registered and announced by the Chinese Patent Office. Where the parties concerned are not satisfied with the decision made by the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, legal proceedings can be instituted at the people's court within three months from date of receipt of said notification. The decision made by the Patent Reexamination Board on the application of declaration of invalidation of patent right for utility model or design is final.
