How to identify and defend intellectual property infringement
1. Determination of intellectual property infringement
(1) The infringed Intellectual property rights must be valid
This requirement means that the infringed intellectual property rights must be applied for in China and have been approved by the State Intellectual Property Office. Verification and approval. The validity period of the intellectual property rights must not expire, nor can the application be in progress but not yet approved, or have been declared invalid by the reexamination committee of the Intellectual Property Office. If the above validity is not met, litigation for intellectual property infringement cannot be carried out.
(2) Infringement must be clearly defined
This requirement means that the plaintiff must give a detailed explanation of the infringing party's behavior and be able to provide sufficient evidence to prove the occurrence of the infringement. In fact, China's intellectual property laws have stipulated this requirement in detail , and pointed out the types of infringement and events that cannot be counted as infringement.
(3) The infringement must be for the purpose of profit, and the infringement that is not for profit shall be regarded as It depends on the situation.
According to regulations, if it is for profit To use an intellectual property for sexual purposes, the user must obtain the owner's permission, otherwise, it will constitute an infringement of intellectual property. Therefore, profit-making is also one of the main elements of intellectual property infringement.
(4) The occurrence of the infringement must be subjective to the infringing party Caused by fault.
This element holds that regardless of Whether the infringing party's subjective fault is intentional or caused by its own mistakes, it should be liable for compensation for the loss of intellectual property rights. If the infringing party can prove the legality of the behavior, it is not liable for compensation, but it still needs to bear the responsibility to stop the infringement, Civil liability for infringement such as destruction of infringing products.
2. Defense against intellectual property infringement
(1) Relevant departments should clearly know whether they have sufficientAs the owner of intellectual property rights, the legal department needs to conduct technical certification of the plaintiff's subject qualifications. If it is found that the subject qualifications are not met, the litigation should be cancelled.
(2) Clarify the intellectual property rights to be litigated Effective protection period. Generally speaking, intellectual property rights have certain time limits. For example, the protection period according to the Patent Law is between 10 and 20 years, and is calculated from the date of patent application.
(3) Clarify the time effect of intellectual property litigation . my country’s Intellectual Property Law also has clear provisions on this matter, which stipulates that the time period for filing a lawsuit regarding intellectual property rights is valid for two years, and this time shall be calculated from the date when the right holder knows or should know that his or her rights have been infringed. If the two-year statute of limitations expires, the court will no longer accept the infringement and the plaintiff will lose the right to sue.
(4) Clarify the applicable intellectual property laws scope, which is mainly reflected in the application for intellectual property protection. Under normal circumstances, both parties need to submit an application for intellectual property protection. It is necessary for relevant departments to effectively verify and compare the intellectual property rights submitted by both parties to clarify whether the intellectual property rights owned by both parties are the same or similar. At the same time, it is also necessary to promptly understand whether the intellectual property applications of both parties contain restrictive clauses, so as to clearly define the scope of intellectual property rights owned by both parties, and finally define a series of contents in the protection application to determine whether they constitute intellectual property rights. infringement.
(5) Use publicly known technologies to defend. The so-called publicly known technology means that it has been published in domestic and foreign publications or used other methods to make the public aware of it before the date of patent application.
(6) Make full use of various rights to defend. China's "Patent Law" has clear provisions that although some units are not the owners of the patent, they have obtained certain licensing rights and used this knowledge to make patents. If the related products are ultimately profitable, it cannot be regarded as infringement, and the patent owner has no right to complain.
(7) Use legal channels to obtain defense. China's "Patent Law" also has a very clear explanation for this, that is, if the defendant does not know In the case of specific matters, it should be recognized as a bona fide third party. It is not a true infringement of rights and should be protected by law. This legality essentially refers to all manufacturing, sales and service links of the defendant. If the relevant provisions of the law are met and it can be proved that the source of the property obtained is legal, it will not be regarded as an infringement. In addition, the defendant can also use temporary transit, scientific research purposes and compulsory licensing to safeguard its rights and defend itself.
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