What is patent prosecution? What are the requirements for patent prosecution? Do I need to seek assistance from a patent firm or patent attorney?

In the field of intellectual property rights, patent prosecution is an important procedure, used to ensure the effective exercise of patent rights and protect the fairness of market competition. This article will introduce the basic concepts of patent prosecution and the requirements for filing a lawsuit.

The concept of patent prosecution

Patent prosecution is a legal procedure aimed at ensuring the effectiveness and fairness of the patent system. When anyone believes that a patent right is invalid, he can file a complaint with the relevant agency to claim that the patent is invalid. In this procedure, the initiator plays the role of supervising the patent system and promoting the correct use of patent rights to protect public interests and the fairness of market competition.

The validity of patent rights is crucial to product innovation, technological development and market competition. However, sometimes patent rights can be disputed or misused. For example, certain patent rights may be too broad, making it difficult for other competitors in the market to enter or compete; or patent rights may be granted based on incorrect facts or evidence. Under these circumstances, patent litigation has become an important way to help ensure the legality and validity of patent rights.

The patent prosecution procedure is usually handled by the patent office or the intellectual property department. The applicant needs to submit a formal filing application, clearly stating the reasons for the invalidation of the patent and the corresponding evidence. Once an application is received, the Patent Office will review it and evaluate it in accordance with relevant legal provisions. If the Patent Office determines that the patent is invalid, it can declare the patent invalid and make it lose its legal effect.

It is worth noting that patent prosecution is not only a challenge to patent rights, but also a means to promote market competition and technological progress. Through this procedure, the initiator can urge the patentee to exercise its patent rights more prudently and avoid the abuse of patent rights and improper monopoly. At the same time, patent litigation can also help maintain market order and fair competition, and promote innovation and technological exchanges.

In short, patent prosecution is an important legal procedure that can effectively protect the operation of the patent system and the principle of fair competition. Through this procedure, we can encourage patent holders to exercise their patent rights legally and reasonably, while protecting public interests and the fairness of market competition. When facing patent issues, it is recommended that the issuer and patentee seek professional legal advice to ensure that their rights and interests are properly protected.

Requirements for filing a patent prosecution

To file a patent prosecution lawsuit, the following requirements must be met:

• Legality Question: The applicant needs to claim the invalidity of the patent right and provide legal facts and evidence to support his claim. This may involve violations of patent documents or other issues regarding the legality of patent rights.
• statute of limitations: If the applicant or patentee is dissatisfied with the review result, he or she must file a petition with the Ministry of Economic Affairs within 30 days. If you are not satisfied with the appeal decision, you can file an administrative lawsuit with the Intellectual Property and Commercial Court within 2 months.
• due process: The procedure for filing a lawsuit must be legal and comply with relevant legal provisions. The complainant needs to follow legal procedures to ensure the legality and effectiveness of the proceedings.

in conclusion

Patent litigation is one of the important means to ensure the validity of patent rights and the fairness of market competition. By following legal procedures and providing sufficient evidence, the complainant can effectively assert the invalidity of the patent. Therefore, patent litigation is of great significance to maintaining the normal operation of the intellectual property system and protecting market order.

Legal Tips for Patent Litigation

(1) Thoroughly understand the patented technology

For highly technical patent litigation, it is very important to research, analyze and thoroughly understand patented technology and related technologies. Patent litigation requires lawyers to not only understand legal provisions and relevant regulations, but more importantly, lawyers must understand patent technology.

In patent litigation, in addition to relevant laws, understanding of patented technology is also a very important part. Legal provisions alone cannot solve the relevant issues in patent litigation, especially when determining whether a certain technology constitutes infringement or whether it constitutes infringement. Whether it is a technology that is well-known to the public, whether it is an obvious technology, etc., all require certain technical knowledge. It is difficult to be competent in patent litigation without delving into patented technology.

(2) Collect effective evidence

For the lawyer of the plaintiff's patentee, the most important thing is to collect evidence of infringement. It is important to purchase infringing products, but some infringing products themselves are counterfeit products of others, and the manufacturer mentioned above is not necessarily the real infringer. factory.

Therefore, it is best to go directly to the manufacturer to purchase products suspected of infringement. If necessary, you can obtain evidence through notarization, or obtain evidence of infringement through the industrial and commercial administration department or technical supervision department when performing other duties.

The most difficult thing for the plaintiff to obtain evidence is to obtain the amount of the other party’s production and sales. In this case, the plaintiff can request the court to take evidence preservation measures to obtain this evidence. Obtaining evidence of infringement and the amount of infringement is the key to the plaintiff's success.

For the defendant, the key is to collect all evidence that can invalidate the plaintiff's patent, including patent documents, sales invoices, product advertisements, public use certificates, etc. Although product invoices can be used as evidence to invalidate someone else's patent, sometimes the invoice is not enough because the invoice does not specifically describe the shape or technical characteristics of the product.

If the defendant finds evidence that is sufficient to pose a threat to the plaintiff's patent, which is one of the keys to victory, or if it finds effective evidence that proves its prior use or that it is using freely and publicly known technology, it may take the initiative in the lawsuit.

(3) Use relevant patent litigation strategies

For defendants, the most common method is to counterclaim that the other party’s patent is invalid, thereby buying time to seek other defense methods. For plaintiffs, before litigation, they can evaluate and re-examine their patents and obtain relevant evidence and identification or reports of patent validity to facilitate subsequent litigation.

Litigation related to patents will have different attack, defense and strategies depending on the parties to the litigation, the content of the patent, market share, patent pool, subsequent patent strategy, etc. Therefore, it is still recommended that lawyers who specialize in patent litigation and Engineers come to assist.

Further reading:What should I do if a trademark infringement occurs? Legal measures that can be taken.

Further reading:What are business secrets? Three major legal requirements for business secrets.

Further reading:What should I do if an employee takes away company confidential information? Relevant provisions of the Trade Secrets Act.

Fuda Law Firm, composed of a team of lawyers, patent attorneys and patent engineering teams who are dedicated to patent law and specialize in the field of intellectual property law. The team lawyer members all have rich practical experience and long-term experience in serving listed companies and small and medium-sized enterprises, and can provide assistance. If you have any needs, you can contact our firm at any time.

Fuda Law Firm
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