A. Case Information:
- Invalidation Petitioner: Shanxi Province Yongji Biological Preventive Preparations Factory
- Patentee: ZHONG Zongyou
- Agency of Patentee: Beijing Genuineways Intellectual Property Agency Co., Ltd.
- Courts/Bodies with Jurisdiction: Patent Reexamination Board
B. Result of Processing / Judgment:
It is decided that the patent right is maintained, which has come into effect, as the petitioner didn’t file an administrative lawsuit.
C. Analysis of the Case:
This case involved the design patent No. 02302673.1 titled "A Bag (Lv Shi Sha Jun Ning)" which was published by the State Intellectual Property Office on September 25, 2002. The issue of this invalidation case is the determination of evidence for "having been produced and marketed before the filing date”. To be more specific, it involved admissibility of testimony without corroboration of other evidence or cross-examination.
This case is a typical case intending to prove that before the filing date, the related products were produced and sold based on testimony. But because of the petitioner’s insufficiency in preparation, we succeeded.
D. Comments by Attorney:
To prepare evidence of testimony kind, the probative value can be enhanced from the following aspects:
1. For testimony, it is better that the witness be present at the court to give testimony; where it is really impossible, the testimony is preferably notarized, etc. methods to stabilize evidence for enhancement of probative value of related evidence.
2. For evidence of simple testimony, it needs to rely on other supporting evidence to enhance its probative value, such as: printing of commission contract of the parties, proof of payment, delivery records, correspondence, statement, etc.
3. In normal circumstances, it is more difficult to determine prior sale than prior publication, but for products of prior sales, usually prior publication evidence can be found, such as: product catalogs, brochures, advertising on magazines or periodicals, etc; one shall try to find as much prior publication evidence as possible, which tends to achieve a multiplier effect.
Attachment: Examination decision of the Patent Reexamination Board of SIPO on invalidation request of the case. PDF
