Invalidating a patent in china

When conducting a prior art search or devising an invalidation strategy, petitioners may wish to consider the situation from a broader technical point of view in order to increase their chances of securing an invalidation.

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This report discusses various features of patent opposition in China and how to prevail before the Patent Re-examination Board.

Lack of novelty or inventiveness is the most frequently used basis of invalidation for invention, utility model and design patents.

After the revision of the Patent Law in 2008, the novelty requirement turned into an absolute standard.

Thus, any publication or public use anywhere in the world before the filing date will destroy the novelty of a patent claim.

Moreover, applications of common knowledge in the art need no clear teaching to be cited in any references; the petitioner is merely required to provide evidence of the common knowledge, which might include textbooks, technical manuals and popular technical journals.

However, if the common knowledge is so obvious that there is no reason to doubt it, the petitioner is relieved of the obligation to provide evidence.

Among these, the issue of new matters is particularly interesting.

While the claims of many patent applications are amended during prosecution, applicants are not required to add new matter to the new claims at this time.

However, the eligibility of a prior art reference when this is part of a combination is not strictly limited – which differs from other countries.

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