Patent reexamination procedure
Patent reexamination proceedings are remedies initiated by an applicant who is dissatisfied with the refusal decision. According to Article 41 of the Patent Law, the Patent Reexamination Board accepts and examines the reexamination request and makes a review decision.
Only patent applicants have the right to initiate patent reexamination proceedings and must submit them to the Patent Reexamination Board of the State Intellectual Property Office within 3 months of receiving the refusal decision. If the applicant whose application is rejected is a co-applicant, the request for review shall be made by all applicants.
Legal basis
The patent reexamination procedure is based on the provisions of Article 41 of the Patent Law and Articles 59 to 63 of the Implementation Rules of the Patent Law.
Patent reexamination process
1. Commencement of patent reexamination procedures: There is a certain time limit for the initiation of patent reexamination procedures, and patent applicants should decide whether to request reexamination within 3 months after receiving the rejection decision.
2. Examination of patent reexamination: After the patent reexamination board accepts the reexamination request and initiates the reexamination procedure after formal examination, it first sends the reexamination request (including the attached supporting documents and the amended application documents) together with the original application file to the original examination department that made the decision to reject the application for pre-examination. The original examination department shall submit a "pre-examination opinion" to the Patent Reexamination Board. Except in special circumstances, the original review department shall complete the pre-examination within one month from the date of receipt of the case file. If the original examination department agrees to revoke the original rejection decision in the pre-examination opinion, the Patent Reexamination Board shall directly make a review decision to revoke the original rejection decision, notify the reexamination requester, and the original examination department shall continue to approve the examination. If the original examination department insists on the original rejection decision in the pre-examination opinion, the Patent Reexamination Board shall set up a collegial group to conduct the review.
3. Patent reexamination decision: The collegial panel makes a review decision after examination. There are three types of review decisions: (1) If the review request is not established, the request for review is rejected. (2) The request for review is established and the decision of rejection is revoked. (3) The patent application documents are amended by the reexamination requester, overcome the defects pointed out in the rejection decision, and revoke the rejection decision on the basis of the revised text.
If the patent applicant is dissatisfied with the decision to uphold the original refusal made by the Patent Reexamination Board, it may enter into subsequent judicial remedies within the statutory time limit.
Review fee
If the request for review submits a request for review within three months from the date of receipt of the decision of rejection, but fails to pay or pay the review fee in full within this period, the request for review shall be deemed not to be filed.
Mode of review
For a request for review, the collegial panel may conduct a review by means of written hearing, oral hearing, or a combination of written and oral hearing.
For the review notice issued by the collegial panel, the review requester shall reply in writing to the defects pointed out in the notice within one month from the date of receipt of the notice. If a written reply is not made after the expiration of the period, the request for review shall be deemed to be withdrawn.
For the oral hearing notice of the review request issued by the collegial panel, the review requester shall participate in the oral hearing or provide a written reply to the defects pointed out in the notice within one month from the date of receipt of the notice. If the notice has pointed out that the application does not comply with the relevant provisions of the Patent Law and its Implementation Rules and the examination guidelines, and the reexamination requester does not participate in the oral hearing and does not give a written reply after the expiration of the period, the reexamination request shall be deemed to be withdrawn.
The binding force of the review decision
If the review decision revokes the original rejection decision, the review and invalidation department shall return the relevant case file to the review department to continue the review procedure. The review department shall implement the review decision and shall not make a decision contrary to the opinion of the review decision based on the same facts, reasons, and evidence.