Patent Invalidity Offense and Defense: A "Battle of Mount Hua" Without Gunpowder
【IP Palace Intrigue】
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Dear readers, today we're not discussing anything else—just a fight.
Not the kind with flashing blades from martial arts novels, but the most thrilling "duel" in the intellectual property world—patent invalidation.
Calling it a "Clash of Titans at Mount Hua" is no exaggeration. All five masters gather, each with their own unique skills, all for one purpose: to "strike down" the other party's patent.
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Act One: The Challenge
Every story begins with someone slamming the table.
One day, you receive a notice—a competitor has filed a request for invalidation against one of your core patents.
In plain language: the other party believes your patent should never have been granted, and now they're asking the China National Intellectual Property Administration (CNIPA) to "settle the score."
(Footnote: Under Article 45 of the Patent Law, from the date of announcement of the grant of a patent right by the administrative department for patent affairs under the State Council, any entity or individual that believes the grant of the patent right does not conform to the relevant provisions of this Law may request the Patent Reexamination Board to declare the patent right invalid.)
This is like someone coming to your mountain stronghold in the martial arts world—"That martial arts manual of yours is copied, isn't it? Your position as sect leader is illegitimate."
The challenge has been issued; you cannot refuse.
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Act Two: Drawing Weapons
Both sides draw their "weapons"—that is, evidence.
The petitioner (the challenger) must prove that your patent is not eligible for grant, and they need solid material. The three most commonly used "blades" are:
First Blade: Novelty.
"Your move was used by someone else long ago—prior art was publicly disclosed before your filing date."
(Footnote: Under Article 22(2) of the Patent Law, novelty means that the invention does not form part of the prior art, and no entity or individual has filed an application with the administrative department for patent affairs under the State Council for the same invention before the filing date.)
Second Blade: Inventiveness.
"Your move is basically the same as someone else's—just a different posture, hardly an original creation."
(Footnote: Under Article 22(3) of the Patent Law, inventiveness means that, compared with the prior art, the invention has prominent substantive features and represents notable progress.)
Third Blade: Insufficient Disclosure.
"Your manual is incomplete—anyone following it couldn't actually make it work."
(Footnote: Under Article 26(3) of the Patent Law, the description shall set forth the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the relevant field of technology.)
Can these three blades "pierce" the patent? Not necessarily. You must parry.
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Act Three: The Arena
The Patent Reexamination and Invalidation Department of the CNIPA—this is our "Mount Hua Arena."
Both sides submit evidence, present arguments, and may even have oral proceedings—yes, exactly what you imagine: both parties sitting face-to-face, trading arguments back and forth, with the examiner acting as referee in the middle.
(Footnote: Oral proceedings refer to the procedure in the patent invalidation examination process in which the parties present their opinions and debate in person, organized by the Patent Reexamination and Invalidation Department.)
This stage is just like a martial arts tournament—you present evidence, I rebut; you cite prior art, I cross-examine. Every move and countermove requires real skill.
And the timeline is extremely tight: after receiving the request for invalidation, the patentee must submit a statement of response within one month.
(Footnote: Article 68 of the Implementing Regulations of the Patent Law: The Patent Reexamination Board shall send the request for invalidation and copies of relevant documents to the patentee, requiring them to present their opinions within a specified period. The specified period is typically one month.)
One month—you must organize your defense within this short window, dismantle each piece of the other party's evidence, and craft a well-reasoned response. This isn't "Clash at Mount Hua"—it's "Blitz at Mount Hua."
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Point of View
In reality, patent invalidation is by no means as simple as "you say it's bad, so it's gone."
Here's a counterintuitive fact: Invalidating a good patent is harder than obtaining a good patent.
Why? Because the examiner already reviewed it once during grant, and now the examiner at the reexamination stage must overturn the previous examiner's judgment—which requires even stronger grounds.
For businesses, patent invalidation is a double-edged sword:
- ⚔️ Offense: You can use this sword to cut down your opponent's "paper tiger patents" (those that never stood on solid ground)
- Defense: But your opponent can also use this sword against you—if your patent isn't solid enough to begin with
So in the final analysis, it comes down to one sentence: The quality of your patent is your protective divine power. A well-drafted patent can withstand years of "Clash at Mount Hua"; a poorly drafted one falls at the very first move.
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Conclusion: Make Your Patent Withstand the "Clash"
If you hold a core patent, why not ask yourself three questions right now:
1. Are the claims you drafted precise enough in scope?
2. Do the embodiments in the specification truly support your scope of protection?
3. If someone challenges you with prior art, how much ammunition do you have to fight back?
Can't answer? It's time to have someone help you "reinforce" your position.
Contact us: Need help assessing the stability of your core patent? Call 010-65150974 / 13911268604
He Zigang | IP Attorney | Aipunajie·Mili·Naje
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Landline: 010-65150974 | Mobile: 15321374076 / 13911268604
Email: [email protected] | WeChat: najieip
He Zigang | IP Attorney | Beijing Naje IP
*This article represents the author's personal views only and does not constitute legal advice. For case-specific analysis, please feel free to contact us.*