When you can file a patent administrative litigation?
Patent administration litigation refers to dispute cases on patent right in which the concerned party is not satisfied with specific administration act made by patent department, thus sues to court to request for cancelling, modifying or remaking of the decision, the concerned patent department as the defendant.
The specific administration act can be divided to 3 kinds:
- The State Intellectual Property Office (SIPO) takes charge of patent issue in China. It’s main task is to accept and examine patent applications, and grant patent right to the invention which is compliance with Patent Law.
- There is Patent Reexamination Board in China. It has 2 main tasks. The former is to handle review application filed by patent applicant who is dissatisfied with SIPO’s rejection and making correspondent decision; the latter is examining invalidation application filed against granted patent and making correspondent decision.
- The Patent department under provincial, autonomous region’s, municipalities’ government is in charge of the management of patents in the related administrative region. The main task is, according to applicant’s request, to urge the infringer to stop infringement and to make penalty decisions on behaviors of counterfeiting others’ patent rights.
Above 3 kinds of act all could cause administrative dispute between supervisor and supervisee. The concerned party who is dissatisfied with the decision made by SIPO, Patent Examination Board and local patent administrative could sue to the court to request for cancelling, modifying or remaking of the decision. Such litigations are patent administrative cases.
Time limit to file a patent administrative litigation
If the party refuses to accept the decision of the Patent Reexamination Board on review or invalidation, it shall, within three months from the date of receipt of the decision, sue to the people’s court.
For administrative litigation, where a party is dissatisfied with the review decision made by State Intellectual Property Office (SIPO) or believes that the review department has overdue inaction, or is dissatisfied with the decision made by local IP management departments on urging the infringer to immediately stop the infringement, the sue period is 15 days from the date of receipt of the corresponding decision or from the date of expiry of the administrative reconsideration period.