How to calculate patent infringement
The object of the infringement is a valid patent. Patent infringement must be based on the existence of a valid patent. The implementation of technology before patent authorization, patents that have been declared invalid, abandoned by the patentee, or technology whose patent rights have expired does not constitute infringement. The Patent Law stipulates a temporary protection system. After the invention patent application is published and before the patent right is granted, those who use the invention should pay appropriate royalties. For disputes arising from the use of an invention without payment of appropriate fees between the publication of the invention patent application and the grant of the patent right, the patentee shall, after the patent right is granted, request mediation from the patent administration department or directly file a lawsuit with the People's Court.
There must be an act of infringement, that is, the actor has objectively committed an act that infringes on the patent of others. For the purpose of production and operation. Implementation for non-production and business purposes does not constitute infringement. It violates the provisions of the law, that is, the actor's behavior of implementing the patent does not have the permission of the patentee and has no legal basis.
Based on the form of patent infringement, patent infringement is divided into two categories: direct infringement and indirect infringement.
1. Direct infringement. Mainly refers to the manufacture, use, sale, offer for sale, import of inventions, utility model patented products or patented products obtained by using patented methods for the purpose of production and operation without the permission of the patentee, as well as the manufacture, sale, offer for sale, import Design patent products.
The forms of expression include:
(1) Manufacturing inventions, utility models, and design patented products Behavior;
(2) Behavior of using invention and utility model patented products;
(3 ) The act of promising to sell products patented for inventions, utility models, or designs;
(4) The act of selling products patented for inventions, utility models, or designs;
(4) The act of selling products patented for inventions, utility models, or designs;
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(5) The act of importing invention, utility model, and design patented products;
(6) Using patented methods and using , the act of promising to sell, sell, or import products directly obtained according to the patented method;
(7) The act of counterfeiting the patent of others. Using or selling for production and business purposes a patented product that is not known to be manufactured and sold without the permission of the patentee or a product directly obtained according to a patented method, and the legal source of the product can be proven, is still an infringement of patent rights and requires Stop the infringement but do not assume liability for compensation.
The behavior of counterfeiting patents
specifically includes the following types:
(1) Mark the patent number of others on the products or product packages manufactured or sold without permission;
( 2) Using other people’s patent numbers in advertisements or other promotional materials without permission, causing people to mistake the technology involved for other people’s patented technology;
(3) Using someone else’s patent number in a contract without permission, causing others to mistake the technology involved in the contract as someone else’s patented technology;
(4) Forge or alter other people’s patent certificates, patent documents or patent application documents.
Patent counterfeiting
Patent counterfeiting refers to using non-patented products to pass off as patented products. The behavior of passing off a patented method as a non-patented method includes the following types:
(1) Manufacturing or selling non-patented products marked with patent marks;
(2) After the patent right is declared invalid, continue to bear the patent mark on the products manufactured or sold;
(3) Referring to non-patented technology as patented technology in advertisements or other promotional materials;
(4) Referring to non-patented technology as patented technology in contracts;
(5) Forging or altering patent certificates, patent documents or patent application documents.
2. Indirect infringement. This means that the actor's own behavior does not directly constitute an infringement of patent rights, but he has committed acts of inducing, encouraging, instigating, and helping others to infringe patent rights. For example, if the perpetrator knows that the relevant products are raw materials, intermediate products, components, equipment, etc. that can only be used to implement a specific invention or utility model patent, but still provides them to a third party to commit patent infringement, the rights holder claims If the actor and the third party bear joint and several civil liability, the People's Court shall support it; if the third party's execution is not for production and business purposes, and the obligee claims that the actor shall bear civil liability, the People's Court shall support it.
The following points should be noted in indirect infringement:
① Without authorization from the patent owner or entrust and transfer its patented technology without authorization. At this time, if the transferee uses the patented technology to manufacture patented products, then the transferee and the transferor constitute joint infringement and must bear joint and several liability.
② For other behaviors that induce, encourage, instigate, or help others to infringe, the perpetrator and the infringer constitute joint infringement and bear joint and several liability.
I believe you have found the relevant answers from the above. If you have other questions or the situation is complicated, the Legal Savior Network also provides online lawyer consultation services. You are welcome to seek legal consultation.
