Identification, Treatment and Remedy of Abnormal Patent Behavior

At present, China is beginning to transform from a patent power to a patent power, and patent work is changing from the pursuit of quantity to the pursuit of quality to encourage scientific and technological innovation. In order to conscientiously implement the decisions and arrangements of the CPC Central Committee and the State Council on strengthening the protection of intellectual property rights, comprehensively improve the quality of patents, ensure the realization of the legislative purpose of the Patent Law to encourage real innovation activities, and abide by the principle of good faith, the State intellectual property Office has issued the measures on standardizing the act of applying for patents.

1. Development Background and Importance

The vigorous development of my country's intellectual property industry has provided strong support for the country's economic and social construction, but at the same time, there have also been violations of the legislative purpose of the patent law and violationsThe principle of "good faith" and all kinds of abnormal patent applications that do not aim at protecting innovation have disrupted the order of national patent work.In order to crack down on irregular patent applications and promote the improvement of patent quality from the source, the State Intellectual Property Office has adopted a series of measures,The abnormal patent application behavior was investigated and disposed. However, the behavior of abnormal patent application is varied and repeatedly prohibited. In order to ensure the realization of the legislative purpose of the Patent Law to encourage real innovation activities, to combat and curb all kinds of abnormal patent applications that are not aimed at protecting innovation, the State Intellectual PropertyThe Authority has now formulated and issued the Measures,Further action on patent applicationClearly definedRegulation.

2. what is an abnormal patent application

The "Measures on Regulating the Conduct of Patent Applications" states that,Abnormal patent application behavior refers.Any unit or individual, not for the purpose of protecting innovation, not on the basis of real invention-creation activities, in order to seek illegitimate interests or fictitious innovation performance or service performance, individually or in a joint submission of all kinds of patent applications, patent applications, transfer of patent applications or patent rights and other acts.

Specific acts of 3. non-normal patent applications

The following types of acts are non-normal patent applications:

1.At the same time or successively submit multiple patent applications with obviously the same invention-creation content, or essentially formed by simple combination and change of different invention-creation features or elements;

2.The submitted patent application has fabricated, forged or altered the contents of inventions, experimental data or technical effects, or copied, simply replaced, pieced together existing technologies or existing designs, etc;

3.The invention-creation of the submitted patent application is obviously inconsistent with the actual research and development capabilities and resource conditions of the applicant or inventor;

4.The invention-creation content of the multiple patent applications submitted is mainly generated randomly by using computer programs or other technologies;

5.The invention-creation of the submitted patent application is intentionally formed for the purpose of circumventing patentability examination, which obviously does not conform to the technical improvement or design common sense, or has no actual protection value of deterioration, stacking, unnecessary limitation of the scope of protection, or has no content of any search and examination significance;

6.In order to evade the regulatory measures against irregular patent applications, multiple patent applications that are essentially related to specific units, individuals or addresses are scattered, successively or in different places;

7.Not to implement the patented technology, design or other legitimate purposes to buy and sell patent application rights or patent rights, or falsely change the inventor or designer;

8.Patent agencies, patent agents, or other institutions or individuals, acting as agents, inducing, abetting, aiding others or conspiring with them to carry out all kinds of abnormal patent application acts;

9.Other abnormal patent applications and related acts that violate the principle of good faith and disrupt the normal order of patent work.

The Process and Treatment Measures of 4. Identification of Non-normal Patent Application

State Intellectual Property Office in Patent ApplicationThe determination of an abnormal patent application can be made at any stage, such as in.Acceptance, preliminary examination, actual examination, review procedures or international phase procedures for international applications,WhenWhere it is preliminarily determined that there is an abnormal act of applying for a patent,will beTo form a special review working group or authorize the examiner to initiate a special review procedure,and willNotificationsCorrespondingThe applicant is required to immediately stop the relevant behavior, and take the initiative to withdraw the relevant patent application or legal formalities request within the specified time limit, or state its opinions.If the applicant fails to reply within the time limit without justifiable reasons, the relevant patent application shall be deemed to have been withdrawn, and the request for handling relevant legal procedures shall be deemed not to have been made.

For the recognized abnormal patent application, the State Intellectual Property Office may, depending on the circumstances, not reduce the patent fee; if the payment has been reduced, it is required to pay the reduced fee.

For applicants with serious circumstances such as repeated offending, the patent fee shall not be reduced for their patent application within five years from the date of determining the abnormal patent application.

For patent agencies or patent agents that have abnormal patent applications, the All-China Association of Patent Agents shall take self-discipline measures. For serious cases such as repeated offenders, the State Intellectual Property Office or the department in charge of patent work shall impose penalties in accordance with laws and regulations.

For other institutions or individuals with the above-mentioned acts, the department in charge of patent work shall punish them in accordance with the relevant provisions on investigating and dealing with unqualified patent agency acts, and those who violate other laws and regulations shall be transferred to the relevant departments for handling in accordance with the law.

For existenceNon-normal applicationIf a unit or individual is suspected of constituting a crime in accordance with the the People's Republic of China Criminal Law, it shall be transferred to the relevant authorities for criminal responsibility in accordance with the law.

The relevant legal remedies after the 5. is recognized as a non-patent application.

The State Intellectual Property Office will deal with abnormal patent applications in an objective, fair and prudent manner on the basis of full consideration of relevant evidence. After the applicant's opinion statement, the State Intellectual Property Office believes that it does not belong to the abnormal patent application behavior, it will be included in the normal examination procedure to continue the review. If citizens, legal persons or other organizations are not satisfied with the specific administrative actions of the State Intellectual Property Office in handling abnormal patent applications, they may apply to the State Intellectual Property Office for administrative reconsideration in accordance with the relevant provisions of the Administrative Reconsideration Regulations of the State Intellectual Property Office, or directly file an administrative lawsuit with the people's court. If the patent applicant is not satisfied with the decision of the State Intellectual Property Office to reject the application, it may request a review to the State Intellectual Property Office in accordance with Article 41 of the Patent Law.

The purpose of cracking down on abnormal applications is mainly to avoid low-quality malicious applications. If you do not pay attention to it, it will cause the applicant to suffer losses and produce unnecessary processing processes. If the circumstances are serious, you will also bear criminal responsibility, so the applicant and the agent are handling When applying for similar applications, you must be cautious and avoid being identified as an abnormal application as much as possibleBehavior.