1. How is an invention patent considered infringement?
1. Determination of infringement Please comply with the following provisions of Article 11 of the Patent Law and relevant legal provisions. If the claims of a later application are included in the protection scope of someone else's earlier patent, it is not considered an infringement act as defined by the Patent Law.
2. The law stipulates that Article 59 of the "Patent Law of the People's Republic of China" stipulates that the scope of protection of invention or utility model patent rights shall be based on the content of the claims. , the description and drawings can be used to explain the content of the claims.
The scope of protection of design patent rights is based on the design of the product shown in the picture or photo. A brief description can be used to explain what the picture or photo means. Indicates the appearance design of the product.
Article 60: Implementing the patent without the permission of the patent owner will infringe the patent rights and cause disputes, which shall be resolved by negotiation between the parties; if the parties are unwilling to negotiate Or if negotiation fails, the patentee or interested party may file a lawsuit in the People's Court, or request the patent management department to handle the matter. When the patent management department handles the matter, if it determines that the infringement is established, it may order the infringer to immediately stop the infringement. If the party is dissatisfied, it may file a lawsuit with the people in accordance with the Administrative Litigation Law of the People's Republic of China within fifteen days from the date of receipt of the handling notice. If the infringer does not file a lawsuit or stop the infringement upon expiration of the time limit, the patent administration department may apply to the People's Court for compulsory enforcement. At the request of the parties, the handling patent management department may mediate the amount of compensation for patent infringement; if mediation fails, the parties may file a lawsuit in the People's Court in accordance with the Civil Procedure Law of the People's Republic of China.
Article 61 If a patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual that manufactures the same product shall provide evidence that its product manufacturing method is different from Proof of patented method.
If a patent infringement dispute involves a utility model patent or a design patent, the People’s LawThe court or the patent management department may require the patentee or interested party to issue a patent evaluation report made by the patent administration department of the State Council after retrieval, analysis and evaluation of relevant utility models or designs, as a basis for hearing and handling patent infringement disputes. evidence of.
Article 62: In patent infringement disputes, the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or existing design. , does not constitute patent infringement.
2. How to identify patent infringement
According to the relevant laws of our country, there are four constituent elements for infringement of rights. The object of infringement is a valid patent that enjoys patent rights in our country, the existence of illegal acts, and the subjectivity of the perpetrator. If there is any fault on the part of the manufacturer and it is for the purpose of production and operation, and meets these four requirements, it can be determined as patent infringement.
1. The object of infringement should be a valid patent that enjoys patent rights in my country. First of all, in view of the regional nature of patent rights, valid patents should generally refer to patents authorized by the State Intellectual Property Office. Secondly, in view of the timeliness of patent rights, only patent rights that have not expired due to payment, invalidation, abandonment, etc. within the specified protection period are valid patents. It should be noted that if a patent right is declared invalid for some reason, the patent right will be deemed to have ceased to exist from the beginning. Therefore, even if someone else has implemented it before, it is not enough to constitute patent infringement.
2. There are illegal activities. That is, the perpetrator has exploited the patent for profit without the permission of the patentee.
It should be noted that Article 63 of the Patent Law stipulates 5 types of patents that are not considered to be infringements. The behavior is an exception to patent infringement liability. If the perpetrator cannot provide evidence as a defense, the perpetrator should be determined to have constituted patent infringement and bear liability in accordance with the law.
3. The perpetrator is subjectively at fault. The subjective fault of the infringer includes intentionality and negligence. The so-called intentionality means that the actor knows that his behavior is an infringement of the patent rights of others and carries out the behavior; the so-called negligence means that the actor carries out the behavior of infringing the patent rights of others due to negligence or overconfidence. However, there are exceptions. For example, Article 63, Paragraph 2 of the Patent Law stipulates that even if the perpetrator has no subjective fault, it still constitutes patent infringement, but it will not be liable.Just bear the liability for compensation.
4. It should be for the purpose of production and operation. Article 11 of the Patent Law stipulates: After an invention-creation is granted a patent right, no one may exploit the patent, except as otherwise provided in this Law, and the exploitation shall not be for the purpose of production or business. Therefore, the purpose of production and operation should also be one of the constituent elements for judging patent infringement.
The above content is the relevant answer. For invention patent infringement, it mainly involves similarities with the other party’s patent. For these infringement cases If so, you can usually just apologize to the other party. If it is not particularly serious, this method is most commonly used. If you have other legal issues, you can consult the relevant lawyers on the Legal Savior Network.
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