In accordance with Article 65 of the "Patent Law Implementing Rules" and in accordance with Article 45 of the Patent Law, if a request is made to declare the patent right invalid or partially invalid, a declaration of invalidity of the patent right shall be submitted to the Patent Reexamination Board. Request letter and necessary evidence in duplicate.

The request for invalidation should combine all the evidence submitted, specify the reasons for the invalidation request, and indicate the evidence on which each reason is based.

The reasons for requesting invalidation of patent rights include:

(1) The subject matter to which the patent right is granted does not comply with Article 2 of the Patent Law regarding inventions, utility models or designs. Definition;

(2) The invention-creation for which the patent right is granted falls under the circumstances stipulated in Article 5 of the Patent Law, that is, it violates national laws, violates social morality or harms the interests of the public, or the invention The completion of the creation relies on genetic resources obtained or utilized in violation of laws and administrative regulations;

(3) The granted patent right cannot be obtained in accordance with the provisions of Article 9 of the Patent Law, That is, the grant of the patent right will result in the repeated grant of patent rights for the same invention-creation, or the applicant for the patent right is not the first person to apply for the same invention-creation;

(4) Granted The patented invention or utility model does not comply with the provisions of Article 20, Paragraph 1 of the Patent Law, that is, the invention or utility model was completed in China, and the patentee submitted the patent to the State Intellectual Property Office for confidentiality review without first reporting it to the State Intellectual Property Office. Application filed by a foreign country;

(5) The invention or utility model for which the patent right is granted does not comply with the provisions of Article 22 of the Patent Law, that is, the invention or utility model does not possess novelty, inventiveness and Practicality;

(6) The design granted patent rights does not comply with the provisions of Article 23 of the Patent Law, that is, the design does not possess novelty or creativity, or is inconsistent with others’ application It conflicts with the legal rights that have been obtained before the date;

(7) The subject matter for which the patent right is granted falls within the content that cannot be granted a patent right as stipulated in Article 25 of the Patent Law;

< p>(8) The invention or utility model patent document does not comply with the provisions of Article 26, paragraph 3 or 4, of the Patent Law, that is, the description does not fully disclose the invention or utility model;

Rights The request does not clearly and briefly limit the scope of patent protection requested based on the description;

(9) The design patent document does not comply with the provisions of Article 27, Paragraph 2 of the Patent Law, That is, the pictures or photos do not clearly show the design of the product requiring patent protection;

(10) The modification of the patent application document does not comply with the provisions of Article 33 of the Patent Law, that is, the modification of the patent application document does not comply with the provisions of Article 33 of the Patent Law. The modification of the invention or utility model patent application document exceeds the scope recorded in the original description and claims, or the modification of the design patent application document exceeds the scope of the original pictures or photos;

(11) Invention or The claims of a utility model patent do not comply with the provisions of Article 20, Paragraph 2 of the Implementing Rules of the Patent Law, that is, the independent claims do not reflect the technical solution of the invention or utility model as a whole and record the necessary technical features to solve the technical problem. ;

(12) The patent right granted does not comply with the provisions of Article 43, Paragraph 1 of the Implementing Rules of the Patent Law, that is, the patent right was granted based on a divisional application, and the divisional application The review of the case went beyond the scope recorded in the original application. Extended information

Case interpretation

A certain utility model patent invalidation request case involves the components of an air conditioner. The evidence 8 and 9 submitted by the invalidation requester are copies of two notarial certificates. , the petitioner submitted the original notarization deed and the notarized and sealed physical objects as attachments to the notarial deed during the oral hearing.

The patentee has no objection to the authenticity of the notarial certificate itself, but has doubts about the authenticity of the physical evidence itself and the time of disclosure. It also has doubts about whether specific parts of the physical evidence have been replaced. There is a stake in obtaining the user's air conditioner by exchanging it for the old one.

Regarding the patentee’s opinion, the collegial panel believes:

Exhibit 8 notarizes the acquisition of the indoor and outdoor units of a certain brand of air conditioner being used by a user from his residence in Beijing. , as well as the process of dismantling, photographing, and sealing the acquired indoor and outdoor units. The notarization also notarized and preserved the warranty card, purchase invoice, and a handwritten "instruction" of the air conditioner.

The invoice records the brand, model and invoicing date of the air conditioner. The model on the invoice is the same as the specification and model shown on the "China Energy Efficiency Label" affixed to the indoor unit of the air conditioner.

The upper part of the QR code on the indoor unit also shows the model and production date. The model corresponds to the model on the invoice. The production date is in the same year as the date shown on the invoice. The production date is first, which is consistent with Mr. Postpartum sales process.

Based on this, the collegial panel believes that the above evidence has formed a chain of evidence, indicating that the air conditioner notarized and sealed in evidence 8 was publicly sold before the filing date of this patent, and the user's handwritten "instructions" can also support the above air conditioner. The machine's public sale time.

Evidence 9 notarized the acquisition of the same brand of air-conditioning indoor unit and outdoor unit being used by another user from his residence in Nanjing City, and the disassembly, photography and sealing of the indoor and outdoor units. During the process, the notarization also notarized and preserved the "investigation transcript" obtained from on-site questioning of the user, the use and installation instructions of the air conditioner, warranty card, and purchase invoice.

Similar to Evidence 8, the model and purchase date in the invoice of Evidence 9 can correspond to the relevant marks on the air conditioner, and the "investigation transcript" can also support the above facts.

From the above notarized content of Evidence 8 and 9, it can be seen that users from Beijing and Nanjing respectively, different purchase locations, investigation records, buyer's instructions, warranty cards, and purchase invoices can mutually support each other.

Both indicate that air conditioners of a certain brand and model were publicly sold before the date of application for this patent. Therefore, the collegial panel recognized the petitioner’s statement that the air conditioners notarized and sealed in evidence 8 and 9 were publicly sold before the date of application for this patent. related claims.

It is common sense to obtain the air conditioner that the user is using by exchanging the old one for the new one, and it is difficult to prove that there is a stake. Regarding evidence 8 and 9 as to whether specific parts of the air conditioner have been replaced, first of all, although this part is easy to disassemble.

However, given that the notarization date of Evidence 8 and 9 and the purchase date of the air conditioner are only more than two years apart, this part will not be replaced under normal use, and the air conditioner was disassembled in court, showing that the part and the air conditioner were Other structures in the indoor unit fit well. In evidence 8, this part is still covered with dust and has no trace of modification, indicating that it is unlikely that it has been replaced.

Secondly, the "instructions" written by the user in evidence 8 and the "investigation transcript" in evidence 9 also provide evidence that the parts have not been replaced. Thirdly, the actual air conditioners in Evidence 8 and 9 taken from Beijing and Nanjing respectively have the same model and the same structure of the components, which also shows that the components have not been replaced.

Finally, the patentee has not provided counter-evidence to prove its claim that the above-mentioned model of air conditioner has been replaced, or that the air conditioner of the above model was sold with components other than those shown in the actual product. Therefore, the panel did not support the patentee’s claim that the component had been replaced.

In this case, each part of each piece of evidence in the chain of evidence 8 and 9 can corroborate each other and point to the same sales fact, and evidence 8 and 9 can also corroborate and reinforce each other. , can strengthen the internal confirmation of the collegial group. Regarding the negative doubts raised by the patentee, it is obviously uneconomical and unfair to let the petitioner prove it.

Therefore, when the collegial panel has been able to form an inner confirmation through the above-mentioned methods, if the evidence itself shows no signs of being replaced and the patentee fails to provide persuasive evidence or reasons, If they even fail to provide evidence, they should bear the consequences of being unable to provide evidence

People's Daily Online - Determination of public evidence in the patent invalidation request procedure