How to serve a patent right that is terminated before the expiration of the term due to the patentee's failure to pay the annual patent fee within the prescribed period?-Q&A.-Shenzhen deep trust patent Agency Co., LTD

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How to serve a patent right that is terminated before the expiration of the term due to the patentee's failure to pay the annual patent fee within the prescribed period?

Release Time：

2020-05-14

Source: State Intellectual Property Office Published: 2020-05-14

Q: the patentee fails to pay the annual patent fee within the prescribed period and the patent right is terminated before the expiry of the period, the State Intellectual Property Office should send the notification of payment of the fee and the notification of termination of the patent right to the patent agent appointed by the patentee or to the patentee?

Answer: The focus of this question lies in the understanding of the validity period of "patent right". First of all, China's patent law implementation rules, article 98 provides that the year after the grant of patent rights shall be paid before the expiration of the previous year. If the patentee fails to pay or fails to pay the full amount, the patent administrative department under the state council shall notify the patentee to pay the annual fee within 6 months from the date of expiration of the fee, and also pay the late payment fee. According to the above provisions, in the late payment period, the termination of the patent right is in a legal pending status, that is, in the late payment period of the validity of the patent right has not been terminated.

Secondly, Part V, Chapter 7, Section 3.3 of China's Patent Examination Guidelines stipulates that one month after the expiration of the period of late payment of the annual patent fee, a notice of payment shall be issued to the patent for which the relevant fee has not yet been paid. Section 2.2.2 of Chapter 9 of Part V of the Patent Examination Guidelines also provides that if the annual patent fee or late payment fee has not been paid or paid in full by the expiration of the late payment period, the examiner shall issue a notice of termination of the patent right two months from the date of the expiration of the late payment period. If the patentee fails to initiate the restoration procedure or the request for restoration of rights is not approved, the Patent Office shall, four months after the termination notice is issued, carry out the invalidation process and announce it in the Patent Gazette. (2020) The Supreme Court Zhi Xing Jian 570 Administrative Judgment held that, according to the above provisions, the issuance of the Notice of Payment of Fee, the issuance of the Notice of Termination of Patent Right, the invalidation processing, and the announcement in the Patent Gazette, etc., are the various procedures of patent examination, and that the patentee is given the means of relief such as the possibility of making up the payment of fee and requesting for reinstatement of the right during the handling of the above patent examination procedures, and that during the period of waiting for payment of the fee and waiting for the Waiting for the payment of fees and waiting for the restoration of rights during the patent is not invalidated, the patentee can maintain its validity through certain behavior. Visible, issued a notice of termination of patent rights after the patent is not necessarily invalid, notice of termination of patent rights is the administrative act before the patent lapses, the patent agency is authorized to act within the validity period of the patent is still legally survives, the state intellectual property office can still be served with documents to the patent agency according to law.

In addition, from the state intellectual property office as the patent administrative department of the state council to exercise the administrative functions of the level of consideration, whether it is issued notice of payment, notice of termination of patent right, or invalidation processing, in the patent bulletin announcement, etc., are for the same patent patent examination procedures, these examination procedures have the completeness and continuity, and the public has a guiding role, the examination procedures, including the service, should be standardize the standard and keep the specific administrative acts before and after consistent. If the process of examination procedures to distinguish the person to be served, will lead to the confusion of the examination procedures, not in line with the principle of reasonableness of the specific administrative act. In summary, in the case where the patent right is terminated before the expiration of the term due to the patentee's failure to pay the annual patent fee within the prescribed period, the notice of payment of the fee and the notice of termination of the patent right by the State Intellectual Property Office shall be sent to the patent agency entrusted by the patentee.

Relevant Cases: (2019) Supreme Court Zhi Xing Jin No. 197, (2020) Supreme Court Zhi Xing Jin No. 570.

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