1. What issues to pay attention to when requesting patent reexamination
1. Patent reexamination is in progress The subject matter issue
According to the provisions of the new patent law, the subject matter of a patent reexamination request is limited to the rejection decision of a patent application, which specifically includes two major categories: First, inventions During the preliminary examination of the application for a utility model or design patent, it is found that it does not comply with the provisions of Article 44 of the Implementing Rules of the Patent Law, and the defect has not been eliminated after stating opinions, revisions or two corrections; the second is an invention patent. When applying for substantive examination, it is found that the application does not comply with the provisions of Article 53 of the Implementing Rules of the Patent Law. After stating opinions and making revisions, the deficiencies are still not eliminated, and a rejection decision is made. Decisions other than these two categories are not the subject of patent reexamination and will not be accepted if applied for reexamination or will be rejected even if accepted. The provisions on the object of the reexamination request here have two meanings:
First, after the patent application is rejected, the only remedy measure that can be chosen is reexamination, but not directly File a lawsuit in court or request administrative review. According to Article 5 of the Administrative Reconsideration Regulations of the State Intellectual Property Office (2012), if a patent applicant is dissatisfied with the decision to reject a patent application, he cannot apply for administrative review.
Second, specific administrative actions other than the decision to reject a patent application cannot be reviewed. The only option is to file a lawsuit in court or request administrative review. For example, you can choose administrative review for situations such as deemed withdrawal, priority approval, fee reduction approval, extension of time limit approval, rights restoration request approval, procedural decisions in reexamination invalidation, inadmissibility, etc. If you are dissatisfied with the reexamination decision or the patent is declared invalid If you are dissatisfied with the administrative reconsideration decision, you can choose to file a lawsuit in court.
2. Delay issues in patent reexamination procedures
After the patent reexamination request has been reviewed by the collegiate panel, the notices issued by the Patent Reexamination Board mainly include two types: one is the reexamination notice (moreCommon), the second is an oral hearing notice requesting reexamination (less common), and a specified response period (1 month). Requests for extension of time limit may be made up to and including the expiration of the designated response period. If the extension period is less than 1 month, it will be calculated as 1 month and shall not exceed 2 months at most; the period specified in the same notice is generally only allowed to be extended once, with a maximum of 2 extensions; the first extension is 300 RMB per month, and the second extension is 300 RMB per month. Extension is 2000RMB per month. That is to say, for the specified period in patent reexamination, the extended time can be up to 4 months, and the maximum fee is 4600RMB.
3. Rights restoration issues in patent reexamination proceedings
Rights involved in patent reexamination proceedings There are two main situations that require restoration: first, the deadline for filing a reexamination is delayed due to justifiable reasons (within 3 months from the date of receipt of the rejection decision), resulting in the loss of the right to request reexamination; second, the reply is delayed due to justifiable reasons. The specified period of the reexamination notice (within 1 month from the date of receipt of the reexamination notice) will result in the loss of patent application rights. There are differences in the specific handling of rights restoration in these two situations.
II. Relevant legal provisions
"The People's Republic of China Implementing Rules of the Patent Law
Article 60 To request a reexamination to the Patent Reexamination Board in accordance with the provisions of Article 41 of the Patent Law, a request for reexamination shall be submitted, The reasons should be explained and relevant evidence should be attached if necessary.
If the request for reexamination does not comply with the provisions of Paragraph 1 of Article 19 or Paragraph 1 of Article 41 of the Patent Law, the Patent Reexamination Board will not accept it and shall write in writing Notify the person requesting the review and explain the reasons.
If the reexamination request does not comply with the prescribed format, the reexamination requester shall make corrections within the time limit designated by the Patent Reexamination Board; if the reexamination request is not made or corrected within the time limit, the reexamination request shall be deemed to be Not proposed.
It states its opinion within a specified time limit. If there is no reply within the time limit, the reexamination request shall be deemed to have been withdrawn; after stating its opinions or making modifications, if the Patent Reexamination Board believes that it still does not comply with the relevant provisions of the Patent Law and these Rules, it shall make a reexamination decision to maintain the original rejection decision.
PatentAfter the reexamination committee conducts a reexamination, if it believes that the original rejection decision does not comply with the relevant provisions of the Patent Law and these Rules, or if it believes that the revised patent application documents have eliminated the defects pointed out in the original rejection decision, the original rejection decision shall be revoked and the original examination department shall continue the application. Conduct a review process.
The above knowledge is the editor’s answers to relevant legal issues. Patent applicants applying for patent reexamination should pay attention to issues including object issues in patent reexamination, Delay issues in patent reexamination proceedings, etc. If you need legal help, readers can go to the Legal Savior Network for consultation. The Legal Savior Network has professional lawyers to answer your questions.