The "invalid" selfie stick patent takes you to re-recognize the value of utility model patents.

Arbitrary contraction, storage freely, selfie stick has become an indispensable important item for many people to travel at home. However, few people would have thought that the patent of the selfie stick "an all-in-one selfie device" is a patent that has been submitted for 22 invalidation requests and is already standing, a well-deserved trump card patent for utility models.

For patents, many people have such a misunderstanding that patents can be invalid. Indeed, many patents with low stability now have a high probability of being invalidated. However, if any patent can be invalid, then the enterprise does not need to invest so much manpower and material resources to apply for a patent. The existence of the selfie stick patent also gives a vivid lesson to those who have this view.

This patent allows the selfie stick to be used without temporary assembly, folding and storage without additional space. Large enterprises such as Huawei, OPPO, vivo, Xiaomi and Samsung all use this patented technology to produce selfie sticks, generating hundreds of millions of sales revenue every year. However, with the growth of the selfie stick market, there are a large number of imitation infringing products on the market. Therefore, the patentee Shenzhen Yuan Desheng Plastic Electronics Co., Ltd. (hereinafter referred to as Yuan Desheng) commissioned a professional organization to carry out large-scale litigation rights across the country. As of August 24, 2018, 427 judgments related to Yuandesheng patent disputes can be retrieved on the Internet, and the lawsuits are located in 24 provinces and cities across the country. Some of the defendants involved in the lawsuit include: Liuzhou Jingtian Trading Co., Ltd., Feixi Luxi Communication Equipment Business Department, Tianjin Chengshu Technology Co., Ltd., as well as China United Network Communications Co., Ltd. Ningbo Branch, Hangzhou Alibaba Advertising Co., Ltd., China Telecom Co., Ltd. Quanzhou Tian'an Road Business Hall and other well-known enterprises, basically companies, supermarkets, places selling mobile phones, e-commerce, communication operators, etc. all over the country have become the defendant.

In view of the patentee's rights protection behavior, as an effective means of defense, many petitors take turns to make patent invalidation requests. In these cases, not only are the claimants spread throughout the country, but the reasons for filing requests for invalidation are varied. The claimants involved in the declaration of invalidity include: Beijing Huaxong Telecom, Yuyao Haohan Electric Appliance, Guangzhou One Hour Communication, Shenzhen Shishang Chuangzhan Technology, etc. Among the reasons for invalidation, some believe that the patent involved does not have the novelty stipulated in the second paragraph of Article 22 of the Patent Law and the creativity stipulated in the third paragraph. Some believe that the claims do not meet the requirements of the fourth paragraph of Article 26 of the Patent Law. The claims are not supported by the specification and do not clearly limit the scope of protection of the claims. Some believe that the independent claims lack the necessary technical features to solve technical problems, violation of the provisions of the second paragraph of Article 20 of the Detailed Rules for the Implementation of the Patent Law; others made another request for the same reason and evidence; and some individual requesters made a request for invalidation, but did not specify the reasons for invalidation in combination with the evidence.

Up to now, except for 5 cases that have been deemed to have been withdrawn or not submitted, of the 17 cases that have made review decisions, except for the first invalidation decision that declared claim 1 invalid, the rest have maintained the validity of the patent rights on the basis of claims 2-13. The relevant person in charge of the Patent Reexamination Board of the State Intellectual Property Office introduced that the series of patent invalidation requests involved in the case highlighted legal issues such as the creative judgment of utility model patents, the determination of the date of disclosure of online evidence, and the application of the principle of "no matter what. Among them, the creative judgment of the utility model is the most critical. Among the 17 cases of invalidation requests that have been reviewed, 16 are related to this issue.

Now to review the patent itself, the patent in question is shown in the following figure:

Figure 1: Description drawing embodying the point of invention

The claims read as follows:

And claim 2 is the claim that is invalid after many times. The claim clearly expresses the correct technical solution, describes its core key points, and balances the relationship between the scope of patent protection and technical contribution, which is the secret of the high stability of the patent claim.

Another secret of the stability of the patent right is that the judgment of the utility model patent on creativity is based on "substantive characteristics and progress". Compared with the judgment basis of the invention patent on creativity, the requirements are lower, and it is precisely for this reason that it is more difficult to invalidate it.

In reality, many agents suggest that applicants apply for one case and two applications (simultaneous application for invention and utility model). The advantage is that they can first obtain the authorization of utility model and protect the patent rights. After the invention is authorized, they will give up the patent right of utility model, thus making the protection of utility model and invention have a continuous process. However, the basis of this proposal is that the patent is more inventive. Take this case as an example. If the case is applied for in one case and two applications, the invention patent is likely to be rejected in the examination process, because at the time of the patent application, the technology of self-timer lever is already available. The difference lies in the gap and bending part. For those skilled in the art, it is easy to think of making a gap and bending part when facing the accommodation problem, its creativity will be questioned by censors. If the invention application is not authorized, the comparison document will be taken as an invalid utility model, which will make the first impression that the creativity is not high. The cleverness of this case is that only the utility model patent application is carried out. Without this bad first impression, the stability of the patent right is much higher.

Although the patent involved in the case has been requested for patent invalidation as many as 22 times, it has to be said that this is only a normal game between the patentee and the infringer in the market competition. In the increasingly fierce market competition, this will be a new normal. In this game, high-quality patent creation, application selection, examination and protection make the patentee have the last laugh, and also make the utility model patent successfully monopolize an industry.