The author was recently refreshed in the Wechat, about the Patent Law (Amended in 2020), which came into effect on June 1, 2021, the Article 66 of which regulated that the new patent holder, interested party or accused infringer can also take the initiative to issue patent evaluation report. But who can ask for a correction of a patent evaluation report?
According to the current Guidelines for Patent Examination, there are two situations in which the correction procedure can be started. One is that the department making the patent evaluation report starts it by itself, and the other is that the requestor requests to start it.That is to say, except for the CNIPA, only the person requesting the patent evaluation report can make a request for correction of the patent evaluation report. In this way, for the patent evaluation report requested by the accused infringer, if there are negative contents in the evaluation report, such as lack of creativity or other defects, which make the patent unstable, the patentee of the patent can not make a request for correction, although it will not lead to the direct defeat of the patent infringement dispute filed by the patentee and interested parties, but it will also make the patentee and interested parties into a disadvantageous situation.
So how can the patentee avoid the above situation?
Article 57 of the Rules for the Implementation of the Patent Law stipulates that where there are more than one claimant requesting a patent right evaluation report for the same patent right for utility model or design, the patent administration department under the State Council shall issue only one patent right evaluation report. The Guide to Patent Examination stipulates that, before the issuance of a patent evaluation report, if more than one applicant separately requests for a patent evaluation report on the same patent for utility model or design, CNIPA shall accept it, but only one patent evaluation report shall be issued.
According to the above provisions, the author believes that in order to enable the patentee and interested parties to have the right to make a request for correction of the negative evaluation report, they shall, after the civil proceedings are initiated, monitor the information of the intermediate documents concerning the patent involved. If it is discovered that the accused infringer has requested the CNIPA to issue a patent right evaluation report on the patent involved, and the patent right evaluation report has not yet been prepared, then the patentee and interested parties should also immediately submit a request to CNIPA to issue a patent evaluation report on the patent involved in the case, so as to make themselves one of the requestors. According to the relevant provisions of the current Guideline on Patent Examination, the patentee and interested parties have the qualification to make a request for correction in the face of negative patent evaluation report, instead of being at a loss in the face of negative patent evaluation report.
The author was recently refreshed in the Wechat, about the Patent Law (Amended in 2020), which came into effect on June 1, 2021, the Article 66 of which regulated that the new patent holder, interested party or accused infringer can also take the initiative to issue patent evaluation report. But who can ask for a correction of a patent evaluation report?
According to the current Guidelines for Patent Examination, there are two situations in which the correction procedure can be started. One is that the department making the patent evaluation report starts it by itself, and the other is that the requestor requests to start it.That is to say, except for the CNIPA, only the person requesting the patent evaluation report can make a request for correction of the patent evaluation report. In this way, for the patent evaluation report requested by the accused infringer, if there are negative contents in the evaluation report, such as lack of creativity or other defects, which make the patent unstable, the patentee of the patent can not make a request for correction, although it will not lead to the direct defeat of the patent infringement dispute filed by the patentee and interested parties, but it will also make the patentee and interested parties into a disadvantageous situation.
So how can the patentee avoid the above situation?
Article 57 of the Rules for the Implementation of the Patent Law stipulates that where there are more than one claimant requesting a patent right evaluation report for the same patent right for utility model or design, the patent administration department under the State Council shall issue only one patent right evaluation report. The Guide to Patent Examination stipulates that, before the issuance of a patent evaluation report, if more than one applicant separately requests for a patent evaluation report on the same patent for utility model or design, CNIPA shall accept it, but only one patent evaluation report shall be issued.
According to the above provisions, the author believes that in order to enable the patentee and interested parties to have the right to make a request for correction of the negative evaluation report, they shall, after the civil proceedings are initiated, monitor the information of the intermediate documents concerning the patent involved. If it is discovered that the accused infringer has requested the CNIPA to issue a patent right evaluation report on the patent involved, and the patent right evaluation report has not yet been prepared, then the patentee and interested parties should also immediately submit a request to CNIPA to issue a patent evaluation report on the patent involved in the case, so as to make themselves one of the requestors. According to the relevant provisions of the current Guideline on Patent Examination, the patentee and interested parties have the qualification to make a request for correction in the face of negative patent evaluation report, instead of being at a loss in the face of negative patent evaluation report.
