How does a patentee protect a patent
1. Patent administrative management (processing) channels;
2. Patent civil litigation;
3. Patent criminal litigation.
The patentee can decide the approach to be taken based on the nature and circumstances of the patent infringement, as well as the attitude and compensation of the infringer during the patent infringement process.
Article 60 of my country's "Patent Law" stipulates that if the patentee is exploited without the permission of the patentee, the patent rights are infringed and any dispute arises, the parties shall negotiate. If they are unwilling to negotiate or cannot reach an agreement, the patentee or interested party may file a lawsuit in the People's Court or request the patent administration 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 63 of the Law stipulates that anyone who counterfeits a patent shall, in addition to bearing civil liability in accordance with the law, be ordered to make corrections by the patent management department and make an announcement, and the illegal gains shall be confiscated and a fine of not more than four times the illegal gains may be imposed; if there are no illegal gains, , a fine of not more than 200,000 yuan may be imposed; if a crime is constituted, criminal liability shall be pursued in accordance with the law.
1. Generally, ordinary patent infringement can be reported to the patent administration department (local intellectual property office) for administrative processing.
The patent administration department may make administrative penalty decisions based on the circumstances of the infringement and its duties:
1. Order The infringer stops infringement;
2. NoCollect illegal gains;
3. Fines, etc.
In the administrative process, the administrative measures that the patent administration department can take include:
1 . Investigate and collect relevant infringement evidence;
2. Seize and detain suspected counterfeit patented products, etc.
"Investigation and collection of infringement evidence" and "Searching and detaining counterfeit patented products" are strong evidence for future prosecution of infringers and settlement of infringement compensation issues. At present, the country has gradually realized the importance and urgency of protecting intellectual property rights, and believes that independent innovation is a long-term solution for the healthy development of a country. Therefore, in the "Twelfth Five-Year Plan" outline, it focuses on "building an innovative country and society." national policy. From the central to local governments (all departments jointly) have strengthened their efforts to crack down on infringement of intellectual property rights and counterfeiting, and a good national atmosphere for protecting intellectual property rights is gradually being established. The patent management administrative department is the functional department for managing patent work in the country. It plays the first role in combating patent infringement and protecting rights. Its role in handling the entire patent infringement incident should become increasingly prominent.
2. Patent civil litigation is generally a way to resolve patent compensation and stop infringement.
Patent owners usually rely on Article 65 of the Patent Law on the premise that there is sufficient evidence of infringement: "The amount of compensation for infringement of patent rights shall be based on The actual losses suffered by the right holder due to the infringement are determined; if the actual losses are difficult to determine, they can be determined based on the benefits obtained by the infringer due to the infringement. If the losses suffered by the right holder or the benefits obtained by the infringer are difficult to determine, refer to the patent license fee The multiple of the amount shall be reasonably determined. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement. If it is difficult to determine the loss of the right holder, the benefits obtained by the infringer and the patent license fee, the people's court may decide based on the type of patent right, Depending on factors such as the nature and circumstances of the infringement, it is determined that a compensation of not less than 10,000 yuan but not more than 1 million yuan will be awarded. Of course, the Patent Law also provides patentees with two major infringement litigation methods in the field of controlling patent infringement: 1. Applying for a pre-litigation order to stop infringement; 2. Applying for pre-litigation evidence preservation.
3. Patent criminal litigation is a rights protection approach for specific patent infringements.
Article 216 of the "Criminal Law" stipulates that counterfeiting other people's patents, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined. The "specific" behaviors of "counterfeiting other people's patents" here are as follows:
1. Marking other people's patent numbers on products or product packaging without permission;
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2. Selling a product knowingly;
3. Without permission in product manuals and other materials Serious behavior such as using someone else’s patent number.
Initiating criminal litigation for patent infringement, in addition to the patentee reporting directly to the public security organs, the patent administrative department, the people's court, etc. should consider that when handling patent infringement cases, Those suspected of committing crimes should also be transferred to the public security organs.
Relevant judicial interpretations also give the patentee the right to prosecute private prosecutions in the People's Court for the crime of "counterfeiting patents". This right requires the patentee to have evidence to prove the facts and circumstances of the infringement before exercising it.
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