In the first sale of the product, Bona fide infringement, first implementation, temporary transit, etc. does not constitute patent infringement, on what does not constitute patent infringement of the situation, the following by the legal savior small editor for you to answer in detail.
First, does not constitute patent infringement of which cases
1, the first sale: the patentee manufacture, import or by the patentee license to manufacture, import the patented product or in accordance with the patented method directly after the sale of the product, use, promise to sell or sell the product, does not constitute patent infringement. This principle is also known as the "exhaustion of rights principle", it applies to the legal market of patented products.
2, bona fide infringement: for the purpose of production and business use or sales do not know is not licensed by the patentee and the manufacture and sale of patented products or in accordance with the patented method of direct access to the product, can prove that the legal source of the product, not bear the responsibility for compensation. This situation in the doctrine known as "bona fide infringement", here the scope of behavior is limited to "use" and "sales", for manufacturing or importing, in accordance with existing law, the perpetrator should be or have the obligation to know the manufacturing or importing of the product. Obligation to know whether the manufacture, imported products are patented products.
(3) Prior implementation: If the same product has been manufactured or the same method has been used or the necessary preparations have been made for its manufacture or use prior to the date of the patent application, and if the manufacture or use is continued only within the original scope, it does not constitute infringement of the patent right.
4. Temporary Transit: A foreign means of transportation that temporarily passes through China's land, water and airspace shall not infringe the patent if it uses the relevant patent in its devices and equipment for the needs of the means of transportation in accordance with the agreement signed between the country of its origin and China or the international treaty to which it is a party, or in accordance with the principle of reciprocity.
5, non-profit implementation: the use of the patent exclusively for scientific research and experimentation does not constitute patent infringement. In essence, such implementation behavior is not for the purpose of production and management, and there is no competition between the patentee, so the patentee's market interests will not constitute an infringement.
Second, what are the legal responsibility of patent infringement
(A) administrative responsibility
For patent infringement, the department of patent administration has the right to order the infringer to stop the infringing behavior, order correction, fines, etc., the department of patent administration at the request of the party concerned, but also on the infringement of the patent right of the amount of compensation for mediation.
(ii) civil liability
1, stop infringing, means that the patent infringer shall, according to the processing decision of the department administering the patent work or the people's court's decision, immediately stop the patent infringing behavior that is being carried out.
2、Compensation for losses. The amount of compensation for patent infringement, in accordance with the patentee for the infringement of the losses suffered by the infringer or the infringer to obtain the benefit of the determination; infringed by the losses suffered by the infringer or the infringer to obtain the benefit of the difficulty in determining, you can refer to the multiples of the patent license royalties reasonably determined.
3, eliminate the impact. In the infringement of the implementation of infringement to the patented product in the market goodwill caused by damage, the infringer should be used in an appropriate manner to eliminate the impact of the legal responsibility to recognize their own infringement, in order to achieve the elimination of the patented product caused by the adverse effects.
(III) Criminal Liability
According to the patent law and criminal law, counterfeiting others' patents, the circumstances are serious, should be directly responsible for criminal liability.
Patent infringement is divided into two categories: direct infringement and indirect infringement. According to the provisions of China's patent law, the amount of compensation for patent infringement shall be determined in accordance with the actual loss suffered by the right holder due to the infringement; if the actual loss is difficult to determine, it can be determined in accordance with the benefits obtained by the infringer due to the infringement. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.
I hope the above content can help you, if you have other questions you can click the button below to consult, or to the legal savior consult a professional lawyer.
