Article 28, Paragraph 2 of the Intellectual Property Case Adjudication Rules stipulates that “The same facts and evidence concerning whether an intellectual property right shall be cancelled or revoked may no longer be asserted in an intellectual property civil proceeding if it has been conclusively decided in an administrative proceeding that the cancellation or invalidation is not established, or if the application for invalidation has been time-barred, or if there are other factors by law prohibiting assertion in an administrative proceeding.”

Therefore, a party could only raise a validity defense allowed by law against a patent in IPR civil procedures.

If the statute of limitations has passed for cancelling the patent, and therefore an application can no longer be filed based on the substantive law, it can no longer be raised in an IPR civil procedure according to the good faith principle.

The disputed patent was issued on November 21, 2009, which clearly has been for more than two years, and the patent can no longer be subject to an application of cancellation according to Paragraph 1, Subparagraph 3 of the Patent Act amended on 2003.

Consequently, the appellant could no longer challenge the patentee’s right to apply for the disputed patent in this declaratory judgment.

Declaratory judgment, Objection against the validity of a patent