1. When will the waiver of patent rights take effect to avoid repeated licensing?
Since The right holder’s declaration of relinquishment of patent rights will take effect on the date of announcement. After the patent right is granted, the patentee may voluntarily request to give up the patent right at any time. If the patentee gives up the patent right, he shall submit a declaration of abandonment of the patent right, and attach it with certification materials signed or stamped by all patentees agreeing to give up the patent right. Or only submit a patent disclaimer statement signed or stamped by all patent holders. If a patent agency is entrusted, the procedures for relinquishing patent rights shall be handled by the patent agency, and a statement of agreement to relinquish patent rights signed or stamped by all applicants shall be attached. A statement of voluntary relinquishment of patent rights must not be accompanied by any conditions. A waiver of patent rights can only waive the entirety of a patent, and a statement of waiver of part of a patent right is deemed to have not been made.
Notice, and relevant matters shall be registered and announced in the Patent Register and Patent Gazette respectively. The effective date of relinquishment of patent rights shall be the date of issuance of the notification of passing the formalities. The patentee shall not request revocation of the declaration of relinquishment of patent rights without justifiable reasons. Unless the non-real owner of the patent right maliciously requests to give up the patent right, the real owner of the patent right (which should provide valid legal documents to prove) can request to revoke the declaration of patent right abandonment.
The declaration of relinquishment of patent rights in Article 13, Paragraph 1 of the Implementing Rules of the Patent Law shall state that the patent rights have been relinquished from the date of application. After the Patent Office receives the declaration of abandonment of patent rights, it will be registered and announced by the corresponding process management department. The effective date of the abandonment of patent rights will be the application date of the abandoned patent.
In any of the following circumstances, the patent right shall be terminated early before the expiration of the term.
(1) Failure to pay annual fees in accordance with regulations;
(2) The patentee waives its patent rights in a written statement.
However, as a right created by law, intellectual property rights have many characteristics that are different from traditional civil rights. From acquisition, application to relief, they all have public power. deep imprint.
Specifically in the field of patent rights, the right to apply for a patent is a civil right, but from the filing of the patent application to the end of the patent review process, national intellectual property rights are not required The Patent Office of the State Council (hereinafter referred to as the Patent Office) makes administrative decisions such as acceptance, examination, authorization, and rejection.
2. Legal nature and declaration of withdrawal of patent application and patent abandonment Effectiveness
(1) Withdrawal of patent application statement
The applicant may Withdraw its patent application at any time before patent rights are granted. If an applicant withdraws a patent application, he or she needs to submit a statement of withdrawal of the patent application. The "Patent Law Implementing Rules" and the "Patent Examination Guidelines" set forth formal requirements for the applicant's statement of withdrawal of a patent application, and emphasize that the withdrawal of a patent application must not be accompanied by Any conditions.
If the patent office declares that the withdrawn patent application has passed the examination, the patent examination process will be terminated. If the invention patent application has been published when it is withdrawn, it should be registered and announced in the Patent Gazette.
The law also imposes certain restrictions on the withdrawal of declarations: During the prescribed suspension procedure, the applicant cannot withdraw its patent application.
In addition, the "Patent Examination Guidelines" clearly stipulate that the statement of withdrawal of a patent application is made after the patent application enters preparation for publication, and the application documents are published or announced as usual .
(2) Statement of Patent Waiver
Before the patent application is authorized, the applicant may Withdraw its patent application. Similarly, after a patent application is granted, the patentee can also give up its patent rights at any time.
Abandonment by the patentee is one of the reasons that causes the patent right to be terminated before the expiration of the term.
After the patent right is granted, the patentee can declare to give up its patent rights at any time. Just like withdrawing the patent application statement, the waiver of patent rights requires the submission of a patent abandonment document. Statement of rights without any conditions attached.
There are formal requirements for the patentee's statement of relinquishment of patent rights.After passing the examination, it shall be registered and announced in the Patent Gazette. Likewise, the patentee cannot give up the patent rights while the Patent Office suspends the relevant proceedings.
To sum up, withdrawing a patent application and giving up patent rights are a kind of disposition of the rights holder’s private rights during the process of patent application and maintenance. After being reviewed and approved by the Patent Office, this kind of disciplinary action may have the legal consequences of terminating the patent application or patent right maintenance procedures.
The termination of patent rights shall be registered and announced by the Patent Office.
In the patent examination and patent right maintenance procedures, the Patent Office as the administrative agency and the patent applicant and patentee as the administrative counterpart should all comply with the administrative law and exercise rights and perform obligations under the rules of the Patent Law. Patent examination procedure is an administrative procedure in which the Patent Office exercises patent examination power. Corresponding administrative actions taken by the Patent Office, such as issuing a deemed withdrawal notice, a rejection decision, and a patent right termination notice, may lead to the termination of the examination procedure. .
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