Will the previous production and sales activities after the patent is declared invalid be considered infringement
If your patent is declared invalid , then according to the provisions of the patent law, this patent does not exist from the beginning, which means that your patent is considered to have never been effective. Therefore, you cannot claim rights based on "validity" before invalidation. If the other party's Patent rights are solid, you will be liable for infringement.
If you do not want to be sued for infringement, you can use the following methods:
1. Check whether there is sufficient Declaring the other party’s patent right invalid based on the evidence and reasons.
2. If the other party’s patent rights are solid, you can ask for a patent license, and you can continue to produce, implement and sell the patented product.
Supplement:
The so-called invalidity of a patent right means that after the patent right is granted, it is found that it has If the conditions for granting patent rights stipulated in the Patent Law and its Implementing Rules are not met, and the Patent Reexamination Board has reviewed and confirmed the patent and declared it invalid, the patent right declared invalid will be deemed to have ceased to exist from the beginning.
The "reasons for invalidation request" of the patent right are the "circumstances" that lead to the invalidation of the patent right, including the following aspects:
1. The subject matter does not meet the conditions for patent grant, including: the subject matter of the invention or utility model does not have novelty, creativity or practicality; the subject matter of the design patent does not have novelty or has been obtained by others before Conflicting legal rights.
2. Illegal situations in patent applications: the description does not fully disclose the invention or utility model; the claims of the authorized patent are not based on the description; patent application documents The modification exceeds the prescribed scope; the subject matter of the patent does not meet the definition of invention, utility model or design; the principle of negotiation and authorization of simultaneous applications; the claims of the authorized patent are unclear, not concise or lack of resolution of other issuesNecessary technical characteristics of technical problems;
3. Violations of mandatory legal provisions, including: violations of national laws, social ethics or harm to public interests; scientific discoveries etc. The law stipulates that patent rights are not granted;
4. Duplicate authorization: If two or more applicants apply for patents for the same invention and creation, the patent The right is granted to the first person to apply, that is, an invention-creation is only granted patent rights to one person (the first person to apply). Inventions, utility models and designs cannot obtain patent rights under the above circumstances. If patent rights have been obtained, they can be declared invalid.
If your patent application fails but is applied for by someone else, it is recommended that you take legal action. If you have any other questions, please come to the Legal Savior Network for online legal consultation. We will have professional lawyers to help you.
