1. Can the court directly determine that the patent right is invalid
1. At present It is controversial whether the court can directly determine whether the patent right is invalid, but the general view is that the people's court cannot directly determine whether the patentee's patent right is valid.
2. Legal provisions:
"Patent Law of the People's Republic of China"
Article 45 From the date when the patent administration department of the State Council announces the grant of a patent right, any unit or individual that believes that the grant of the patent right does not comply with the relevant provisions of this Law may Request the Patent Reexamination Board to declare the patent invalid.
Article 46 The Patent Reexamination Board shall promptly review and make a decision on a request to declare the patent right invalid, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.
Anyone who is dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or to maintain the patent right may file a lawsuit in the People's Court within three months from the date of receipt of the notice. The people's court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party.
"Administrative Litigation Law"
Article 70 Administrative actions include any of the following circumstances , the People’s Court’s judgment shall be revoked or partially revoked, and the defendant may be ordered to take administrative action again:
(1) The main evidence is insufficient;
(2) Wrong application of laws and regulations;
(3) Violation of legal procedures;
(4) Exceeding authority;
(5) Abusing authority;
(6) Obviously inappropriate.
2. Invention and creation patents What conditions must be met
1. Novelty
refers to the Before that, the same invention-creation has not been publicly published in domestic and foreign publications, has not been publicly used in China, or has been made known to the public in other ways, nor has the same invention-creation been applied for and recorded by other patent offices. In patent application documents published after the filing date. In the following situations, the disclosed invention-creation does not lose novelty. The invention-creation for which the patent is applied for was first exhibited at an international exhibition within three months before the filing date. , Novelty will not be lost in the three situations where others leak the content of the first published content at academic conferences and technical conferences without the applicant’s consent.
2. Creativity
means that the invention has outstanding beneficial features and significant progress compared with the existing technology before the filing date. Substantive features refer to the invention-created Technical characteristics, compared with existing technologies, are essentially different, have positive and negative effects, and are conducive to promoting scientific and technological progress.
3. Practicality
It means that the invention and creation applied for patent can be applied and used in production and can produce positive effects. The technical solution is complete and feasible. It is a medium-sized enterprise in the same technical field. Technicians can reuse it many times with the same effect, that is, it must be implementable and reproducible, and it must be able to produce higher economic benefits and social benefits.
The above Knowledge is the editor’s answer to relevant legal issues. According to the relevant laws of our country, it is currently controversial whether the court can directly determine the invalidity of the patent right. However, the general view is that the people’s court cannot directly determine the patentee’s invalidity. Whether the patent right is valid. If you need legal help, you are welcome to go to the Legal Savior Network for legal consultation.
