1. How to change the patentee of an unauthorized patent
Unauthorized patent If the patentee has the right, there is no patent right, so if the patentee cannot be changed, the patentee can only be changed.
"Patent Law of the People's Republic of China"
Article 10 Patent application rights and patent rights Can be transferred.
Chinese entities or individuals that transfer patent application rights or patent rights to foreigners, foreign enterprises or other foreign organizations shall handle the matter in accordance with the provisions of relevant laws and administrative regulations. formalities.
When transferring patent application rights or patent rights, the parties shall enter into a written contract and register it with the patent administration department of the State Council, which shall make an announcement. The transfer of patent application rights or patent rights takes effect from the date of registration.
Article 39: If no reason for rejection of an invention patent application is found after substantive examination, the patent administration department of the State Council shall make a decision to grant the invention patent right and issue the invention The patent certificate shall be registered and announced at the same time. The invention patent right shall take effect from the date of announcement.
Article 40 If no reason for rejection is found after preliminary examination of a utility model or design patent application, the patent administration department of the State Council shall make a decision to grant the utility model patent right or design patent right. The decision on the design patent right shall be issued with a corresponding patent certificate, and shall be registered and announced at the same time. Utility model patent rights and design patent rights take effect from the date of announcement.
2. Is there any exemption from liability for patent infringement?
According to legal provisions, to constitute patent infringement, the following conditions need to be met:Case:
1. The party infringed a valid Chinese patent. That is to say, this patent has been applied for registration in accordance with the law, and the patent annual fee has been paid on time, and it is protected by the patent law. If the patent does not meet these conditions, it can be declared invalid by the court. If it is declared true, then there will be no liability for infringement damages.
2. The implementation must be without the permission or authorization of the patentee. If a license contract signed with the patent owner can be found, then the patent owner’s infringement claim will not be established. If not, the defendant will not be liable for damages.
3. The implementation behavior must be for the purpose of production and operation. That is to say, patented technology is used to produce it, and then it may be sold to make a profit.
However, to determine whether there is patent infringement, the following determinations must be added:
1. The technical features involved by the sued infringer are all the same as those of the patent, which constitutes infringement;
2. The technical features involved by the sued infringer are all the same. If the technical features involved are more than the technical features of the patent, it also constitutes infringement;
3. The technical features involved by the accused infringer are different from the technical features of the patent. There are similarities and differences, but if the different technical features are equivalent to the technical features of the patent, they still constitute infringement; otherwise, they do not constitute infringement.
Through the above analysis, we know that according to the provisions of the Patent Law, if a patent is not authorized, it does not have patent rights, and the patentee cannot be changed. If the patent is in the application stage, the owner of the patent can be changed by transferring the right to apply for the patent. If you need legal help, readers can go to the Legal Savior Network for consultation.
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