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The patentee files a lawsuit against the decision to declare all patent rights invalid. During the litigation period, does the annual fee for the patent involved have to continue to be paid?
Release Time：
2020-05-19
Source: State Intellectual Property Administration Release time: 2020-05-19
Question: The patentee files a lawsuit against the decision to declare all patent rights invalid. During the litigation period, does the annual fee for the patent involved have to continue to be paid?
Answer: After a decision is made to declare all patent rights invalid, the patentee still needs to pay annual fees before the legal proceedings against the decision are concluded; and after the validity of the invalidation decision is confirmed through legal procedures, the patentee may request Refund the annual fees after the patent year in which the invalidation decision date occurs.
Some parties believe that the invalidation decision is an administrative decision that takes effect once it is made, so there is no obligation to continue to pay annual fees; and when the effective court judgment revokes the invalidation decision, the patentee is obligated to continue to pay annual fees. . There is a bias in this understanding. If this is done, the possible consequence is that even if the court revokes the invalidation decision, the patent involved may be terminated due to failure to pay annual fees.
Briefly speaking, the reason is that after the decision to declare all patent rights invalid is made, the legal content of "being deemed to have not existed from the beginning" stipulated in Article 47 of the Patent Law will not be deemed to have existed from the beginning after the legal period or legal procedures. Before confirmation (Article 46 of the Patent Law stipulates that "a lawsuit shall be filed with the People's Court within three months from the date of receipt of the notice"), it is not effective for the patentee, that is, Article 43 of the Patent Law The obligation to pay annual fees stipulated in the Patent Law has not been waived; if the patentee fails to continue to pay annual fees as required, the patent rights involved will be terminated before the expiration of the term in accordance with Article 44 of the Patent Law.
Relevant cases: (2019) Jing 73 Xing Chu No. 9951, (2020) Supreme Court Zhi Xing Zhi No. 294, (2015) Yizhong Xing Chu Zi No. 1604.
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