[Direct answer]In the Beijing area, applications for declaration of patent invalidity are accepted by the Reexamination and Invalidation Handling Department of the Patent Office of the China Intellectual Property Administration. According to Article 45 of the Patent Law of the People's Republic of China (amended on October 17, 2020 and implemented on June 1, 2021), after a patent is granted, any unit or individual may declare part or all of the patent right invalid to the Patent Office; Article 46 Paragraph 2 stipulates that the decision of the Patent Office to declare the patent right invalid shall take effect from the date of its issuance. According to Article 45 Paragraph 2 of the same law, the declared invalid patent right shall be deemed to have never existed from the outset. There are no restrictions on the applicants, but in practice, they are usually the parties accused of infringement or interested parties.Intellectual property protection and corporate lawIn class action lawsuits, the coordination between invalidation procedures and infringement litigation is particularly crucial.

1. Problem background and typical scenarios

The common motivations for applying include: attempting to use patent invalidation as a defense after being accused of infringement, competitors wanting to eliminate obstacle patents, and technical objections to the authorization conclusion. A common misunderstanding in practice is submitting only one patent document without providing a comparison explanation, or confusing the publication date with the application date, resulting in an invalid time point.Business and contract disputes in enterprisesIn such cases, all counterclaims must be supported by evidence, and this logic also applies to patent procedures.

II. Key points of dispute

First, whether the submitted prior art belongs to qualified evidence. Second, whether the disclosure date of the prior art is earlier than the filing date of the patent application in question. Third, whether the specification is clear, sufficient, and supports the claims. Fourth, whether the claims meet the requirements of novelty, inventiveness, and practicality. Fifth, whether the infringing solution falls within the scope of protection of the amended claims. Sixth, the order and suspension of the invalidation procedure and infringement litigation. Seventh, the reviewability of the invalidation decision and subsequent remedies.Special services and other casesThe column provides a more detailed explanation of this issue.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers believe that the success or failure of an invalidation application depends on the matching of three sets of materials: evidence, comparison logic, and scope of request. In terms of evidence, it should be submitted according to the type of evidence, including patent literature, scientific literature, product samples and sales materials, and third-party version records, and attention should be paid to the verifiability of the disclosure time. Regarding comparison logic, it is recommended to prepare a comparison table for all technical features of the involved claims, and to explain in detail how the comparison documents disclose or substantially disclose each feature, so as to avoid making general claims that the invention lacks novelty or creativity. In terms of scope of request, it should be accurately positioned. The invalidation declaration request can be made for the whole or part of the technical features of the claims, so as to avoid the scope being too broad, leading to a prolonged review period and scattered conclusions. In terms of litigation coordination, it is necessary to note that if the invalidation declaration request has been accepted, the patent infringement litigation may be suspended, so the timing of making the request itself is a strategy. To use the logic of contract disputes as a comparison: the accuracy of the request is often more decisive for the final outcome than the intensity of the claim.Business and contract disputes in enterprisesThe column provides more explanations about the design of this strategy.

IV. Practical suggestions and legal basis

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Action suggestions: 1. Systematically search for and fix existing technical evidence, paying attention to the publication time; 2. Create a comparison table for each feature of the claims; 3. Clarify the specific scope of the request for invalidation; 4. Prepare a comparative analysis of the specification and the claims; 5. Assess the impact of the request for invalidation on infringement litigation procedures; 6. Track the review progress and respond to review opinions in a timely manner; 7. If you are not satisfied with the invalidation decision, understand the subsequent remedies. Legal basis: Articles 22, 26, 45, 46, 47, 68, and 69 of the Patent Law of the People's Republic of China (amended on October 17, 2020 and implemented on June 1, 2021); Provisions related to the review guidelines and procedures for re-examination and invalidation. For procedural advancement, you can refer to the relevant provisions.Special services and other casesFor details on the connection between infringement lawsuits, please refer to the following document.Business and contract disputes in enterprisesThe specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Advice

Firstly, the existing technology must be disclosed before the patent application date. Secondly, comparing each feature is the key to obtaining support. Thirdly, the scope of the request should be precise to avoid being too broad. Fourthly, the invalidation procedure may affect the pace of infringement litigation, so it needs to be coordinated. Fifthly, the existing technology defense and the invalidation declaration can form a synergy. Sixthly, attention should be paid to the legality and authenticity of the evidence. Seventhly, patent invalidation is a matter for the strong, and no one should promise the outcome.

VI. Frequently Asked Questions

Q1: How to apply for a declaration of patent invalidation?

Any unit or individual may file a request for invalidation with the Patent Review and Revocation Department of the China Intellectual Property Administration. According to Article 45 of the Patent Law of the People's Republic of China, a request for invalidation may be filed immediately after the patent is granted. Generally, it requires submitting a request for invalidation, evidence materials, and a statement of reasons, and paying the corresponding fees. The request should target specific claims or specific technical features, and explain the legal provisions and reasons on which it is based. After acceptance, the applicant needs to respond to the review opinions on schedule and wait for a decision.

Q2: Is there a time limit for requesting the invalidation of a patent?

According to Article 45 of the Patent Law of the People's Republic of China, patent owners, interested parties, or any units or individuals may file a request for invalidation after the patent is granted, without being subject to the time limit for filing similar administrative lawsuits. However, in practice, it is recommended to file the request as soon as possible: First, the invalidation procedure has a review cycle, and filing too late may affect the pace of infringement litigation; Second, the right holder may avoid infringement by amending the specification or claims; Third, there is a risk of loss of evidence of prior art in some cases due to its long-term existence.Special services and other casesThe column provides a more detailed explanation of this issue.

Q3: What materials are needed to request a declaration of invalidation?

The core materials include a request for invalidation, prior art evidence, a comparison statement, and a statement of reasons. Evidence can be divided into four categories: patent documents, scientific and technical documents, physical products and sales materials, and third-party version records. It is recommended to prepare a comparison table for all technical features of the claims involved in the case and explain the corresponding relationships item by item. It is also necessary to pay attention to the legality of the evidence form, such as the notarization certificate, the way of obtaining evidence of physical products, and the proof of the public disclosure time.

Q4: Can I still file a lawsuit during the invalidation declaration period?

Yes, the two procedures run in parallel but influence each other. According to Article 45 of the Patent Law of the People's Republic of China, patent owners, interested parties, or any units or individuals have the right to request a declaration of invalidity. At the same time, in patent infringement litigation cases accepted by the people's courts, if the request for a declaration of invalidity has been accepted, the litigation may be suspended. Therefore, the timing of submitting a request for invalidation needs to be coordinated with the overall strategy of the infringement litigation to avoid the litigation being stagnant for a long time.

Q5: How much does it cost to hire a lawyer to apply for patent invalidation?

The fee depends on the technical complexity of the claims, the scope of the search, the amount of evidence, and the workload of comparison. Cases with simple technical solutions and clear search conclusions have relatively manageable costs; those involving complex mechanical structures, chemical solutions, or requiring large amounts of experimental data to support the claims will obviously incur higher expenses. If the case also involves litigation representation for infringement, the fees for the litigation phase will be calculated separately. It is recommended to conduct a preliminary search and feasibility assessment before placing an order, and then determine the scope of services and the quote.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.