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1. Invalidation
of Patent Right
The Chinese Patent Law stipulates that "Where,
starting from the date of the announcement of the grant
of the patent right by the Patent Administration Department
under the State Council, 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 Re-examination Board to declare the
patent right invalid". To maintain the solemnity
of the Patent Law and interests of the public, the Patent
Law sets up a "procedure for invalidation" in
its patent examination procedures. 2. Responses in
the procedure of invalidation
The Patent Re-examination Board will forward a copy
of the invalidation request and attached documents to
the patent owner, asking it/he to make responses during
a subscribed time period. The patent owner as well as
the invalidation request applicant should always respond
the notice of forwarding invalidation request or invalidation
office action of the Patent Re-examination Board during
the subscribed time period, failure in timely responding
will not affect the examination of the Patent Re-examination
Board.
During the examination of an invalidation request,
the owner of an invention patent or utility model patent
can amend the claims only, and cannot broad the original
patent protection scope; the owner of a design patent,
however, cannot amend the application documents.
3. Examination of Invalidation Request
The Patent Re-examination Board exams the request
for invalidation. During the examination, the Patent
Re-examination Board can, upon request of the relevant
parties, or based on the need of the case, decide to
conduct oral hearings. The Patent Re-examination Board
makes decision on invalidation requests and notifies
the request applicant and the patent owner. The Patent
Office will register and announce the decision of the
invalidation. A patent invalidated is deems not existed
from the very beginning.
If a party is not satisfied with the decision made
by the Patent Re-examination Board on either invalidating
the patent, maintaining the patent or partially maintaining
the patent, can launch a lawsuit at the People's Court
within 3 months upon receipt of the invalidation decision.
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