[Direct answer]In the Beijing area, the proportion of utility models being declared invalid is relatively high. The fundamental reason is that their authorizations only undergo preliminary review and not substantive review, making their stability inherently weaker than that of inventions. According to Article 40 of the Patent Law of the People's Republic of China, utility model patent applications that do not find grounds for rejection after preliminary review will be granted authorization, without undergoing substantive review of novelty and creativity. Therefore, a large number of "problematic patents" are granted authorization, and they are more likely to be invalidated by comparative documents in subsequent invalidation procedures. In addition, the short protection period, low application threshold, and large number of utility models also make them high-frequency targets of invalidation requests. Understanding this mechanism can help enterprises make rational planning and assess risks. For more details, please refer to the following link:Intellectual property protection and corporate legal services.

1. Problem background and typical scenarios

Utility models are often used by SMEs and individual inventors as a protection tool due to their fast authorization and low cost, but they are also often jokingly referred to as "paper tigers". Typical scenarios include: the right holder sues for infringement based on a utility model, but the defendant immediately initiates a declaration of invalidation, and the right is shaky during the litigation; the applicant gives up on the invention and files for a utility model to save time, only to find out later that it lacks stability; and competitors specifically target batch utility models for invalidation. Many people mistakenly believe that "getting a certificate guarantees success", or conversely, that "utility models are useless". In practice, the value of a utility model depends on the novelty and creativity of the technology itself, rather than the form of authorization. It needs to be rationally evaluated in combination with stability assessment. For enterprises with IP portfolios, it can be combined with other IP protection measures to enhance their overall IP protection level.Business and contract dispute resolution services for enterprisesPlanning.

II. Key points of dispute

There are three main controversies behind the high invalidation rate of utility models. Firstly, differences in review standards: According to Article 40 of the Patent Law, utility models only undergo a preliminary review, during which reviewers do not search for comparative documents or evaluate inventiveness. The threshold for granting authorization is significantly lower than that for inventions, making it easier for low-quality applications to pass the review. Secondly, it's easier to obtain evidence for invalidation: The prior art used to evaluate the inventiveness of utility models includes technologies that were publicly known at home and abroad before the application date, which has a wide scope and a high hit rate. Thirdly, there are defects such as insufficient protection of the subject matter and inadequate disclosure in the specification. Some utility models themselves do not belong to the protected subject matter or lack sufficient support in the specification, making them vulnerable to being invalidated as a whole in the invalidation process. For issues related to rights protection coordination, you can refer to the relevant provisions.Creditor-debtor relations and enforcement case services.

III. Professional analysis by Hengluo Lawyers

Based on practical observations in handling utility model protection and invalidation cases, utility models are most often subject to "invalidation counterattacks" in infringement litigation, which has almost become a standard tactic for defendants. In judicial practice, courts tend to be cautious in handling utility model infringement cases, often requiring rights holders to supplement patent evaluation reports to corroborate stability. Hengluo Law Firm points out common pitfalls: First, claiming high compensation for utility models without conducting stability assessments in advance, being passive in litigation; Second, mistakenly believing that authorization means stability, ignoring pre-application prior art searches; Third, protecting technologies with high creativity only as utility models, missing out on more stable invention paths. It is recommended to conduct "dual reporting" or prior searches during the layout stage, and prioritize stability considerations. For cases involving evaluation reports, follow-up actions can be taken accordingly.Special services and other case services.

IV. Practical suggestions and legal basis

The core legal basis is Article 40 of the Patent Law of the People's Republic of China (amended on October 17, 2020 and implemented on June 1, 2021), which stipulates that a utility model patent will be granted after a preliminary review without a substantive review; Article 22, which stipulates the requirements of novelty, inventiveness, and practicality; and Articles 45 and 46, which stipulate that the review committee will review the invalidation declaration. Practical suggestions: Conduct a prior art search before filing to eliminate low-quality proposals; prioritize inventions or "invention-utility model dual filings" for core technological innovations to balance speed and stability; entrust a stability assessment and prepare a patent evaluation report before defending rights; and focus on distinguishing technical features and proving inventiveness when facing invalidation challenges. For enterprises involved in patent strategies, they may consider the following:Intellectual property protection and corporate legal servicesSystem layout.

5. Hengluo Law Firm's Reminder

A utility model is not "useless", but rather "it depends on where it's used": it has fast authorization and low cost, and is suitable for protecting short-lifespan, rapid-righting-up improvement technologies, but its stability is weaker than that of an invention. Enterprises should make rational combinations: use utility models to seize time and use inventions to build barriers. Before protecting rights, it is necessary to conduct stability assessments and patent right evaluation reports to avoid the embarrassment of "having a certificate in hand but being ruled invalid"; when fighting against invalidation, the focus should be on proving the creativity of the distinguishing technical features. Never give up on utility models just because the invalidation rate is high, nor should you overstate their effectiveness. When encountering layout disputes, you can seek help fromSpecial services and other case servicesDevelop a portfolio strategy.

VI. Frequently Asked Questions

Q1: The high invalidation rate of utility models does it mean that they are useless and will definitely be invalidated?

This interpretation is incorrect. A high rejection rate only indicates that the overall stability of the invention is weaker. The root cause is that Article 40 of the Patent Law stipulates that only a preliminary review is conducted, without a substantive review, which allows some low-quality applications to be granted and then invalidated in the invalidation process; but this does not mean that every utility model will be invalidated. If the technology itself has genuine novelty and inventiveness and can withstand the scrutiny of comparative documents, it can still effectively protect rights. Enterprises should distinguish between "low-quality patents" and "high-quality utility models". The former carries high risks, while the latter still has value. The rational approach is to conduct a search before applying for a patent and evaluate the stability before defending rights, rather than rejecting or blindly trusting them outright. The outcome will vary depending on the technical solution.

Q2: If I want to invalidate a utility model, what evidence do I need to prepare?

Similar to the invalidation of an invention, the key point is the comparison documents disclosed before the priority date. Evidence includes: patent documents, journals, textbooks, standards, or evidence of public use disclosed before the application date (including the priority date); to deny creativity, it is also necessary to explain how the combination of comparison documents covers its distinguishing technical features. Given that utility models only undergo a preliminary review, it is easier to find prior art that matches them, but the evidence must still be authentic, with a clear disclosure time and a specified source. The request should list the reasons and corresponding evidence item by item. It is recommended that the search and drafting be carried out by professionals to increase the success rate of invalidation and the likelihood of the request being accepted.

Q3: When applying for utility models and inventions, is there a big difference between the official fees and the actual costs?

The official fees and agency fees for utility models are generally lower than those for inventions, with a shorter approval period and no substantive review required, making the upfront investment more manageable, which is why they are so popular. The specific official fee standards are subject to the current announcements of the China Intellectual Property Administration, including application fees, annual fees in the year of authorization, etc. In terms of maintenance, the protection period for utility models is ten years, shorter than that for inventions (twenty years), and the annual fee scale is also lower. Agency fees vary depending on the complexity of the technology and are subject to the contract terms, with no unified government pricing. When making a choice, enterprises should consider the following factors: if they prioritize speed and cost-effectiveness, they should opt for utility models; if they prioritize stability and long-term protection, they should choose inventions. For core innovations, they can file applications for both utility models and inventions simultaneously. It is recommended to make a decision based on the technology's lifespan and the need for legal protection.

Q4: What are the approximate timeframe and risks involved in protecting rights through a utility model patent?

The process of obtaining a utility model patent authorization is relatively quick, but defending against infringement often involves the defendant initiating an invalidation declaration, which prolongs the overall timeframe and increases the risks. In infringement litigation, courts often require right holders to submit patent evaluation reports to support the stability of their patent rights. If invalidation proceedings are initiated, it often takes several months to over a year from the request to the review decision. Once the patent is invalidated, the infringement claim will lose its legal basis. Therefore, the timeframe for defending against infringement is not just the six or three months of infringement trial, but also includes the invalidation trial and possible administrative litigation. In terms of risks, suing without conducting a stability assessment can easily put one at a disadvantage. It is recommended to complete the evaluation report and stability demonstration before suing to proactively mitigate the risk of invalidation.

Q5: When a company faces stability issues with its utility model, how should it specifically plan and respond to them?

Here's the translation of the four steps suggested by the author into English, with a detailed explanation: 1. Before applying for a patent, conduct a search for existing technologies to eliminate obviously low-quality proposals and avoid paying for "problematic patents". 2. For core and long-life cycle technologies, prioritize applying for invention patents, or adopt the strategy of "simultaneously filing for invention and utility model patents" to balance speed and stability. 3. Before preparing to protect rights with a utility model patent, first commission a stability assessment and obtain a patent evaluation report to predict the risk of invalidation. 4. If an invalidation challenge is raised, focus on demonstrating the inventive step of the distinguishing technical features and, if necessary, strengthen protection by filing for an invention patent. Enterprises should view patent portfolios as a system rather than isolated certificates. For strategic purposes, they can leverage the expertise of professional organizations to assist with patent protection strategies.Intellectual property protection and corporate legal servicesSystem planning.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific situations.

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

Disclaimer: This article is compiled based on current laws and regulations and publicly available 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.