1. How to deal with infringement during the patent application process
Patent application process If a patent infringement is infringed, you can take the following methods to protect your rights:
(1) Evidence that should be collected when solving patent infringement
1. Evidence of patent ownership. Prove that the plaintiff enjoys patent rights or patent licensing rights.
2. Evidence of infringement exists. Prove that the defendant has committed or is about to commit acts that infringe the patent right. The plaintiff should submit evidence such as the alleged infringing product and its sales invoices, comparison materials of the technical features of the patent and the alleged infringing product.
3. Evidence of the amount of compensation. Prove that the amount of compensation proposed has a factual basis. The plaintiff should submit evidence that can prove the amount of compensation it proposes, such as evidence of the losses suffered by the right holder due to the infringement or evidence of the benefits gained by the infringer due to the infringement; If it is difficult to determine the benefits obtained from infringement, the people's court may reasonably determine the amount of compensation with reference to the patent license fee.
(2) Negotiation and settlement of patent infringement
Patent owner and accused infringer Everyone can negotiate on their own or reach a settlement agreement to resolve disputes through the mediation and mediation of other third parties. When an intention to negotiate is expressed, an infringement warning letter can generally be sent to the infringing party. This is not stipulated in my country's patent law, but it is often used in real life, and often achieves good results. The way in which an infringement warning letter is written can be based on different circumstances, and the tone can be tough or gentle. Generally, the following content should be stated:
1. The patent number of the patentee and the main claims of the patent;
2. The other party’s products or methods infringe the patent, and we hope to suspend or prohibit the other party’s manufacturing, sales and use;
3. When do you hope the other party will respond;
4. If the other party does not respond, the patentee may the measures taken.
(3) Administrative adjudication or coordination of patent infringement
Patent owner’s infringement If the facts and evidence of the infringement are sufficient and conclusive, the infringer can report it to the relevant administrative departments such as the Patent Office, which will take administrative measures to investigate and verify the infringement behavior of the infringer and impose administrative penalties. During the administrative adjudication process, the relevant patent administrative department may mediate the civil liability for patent infringement based on the application of the relevant parties.
(4) Sue the court after patent infringement
The patentee discovers the infringer After infringing its patent rights, it can also directly file a civil lawsuit with the relevant people's court at the place where the infringement occurred or where the defendant is located, requesting that the infringement be stopped and compensation for economic losses be compensated. At the same time, you have the right to apply for litigation preservation of the infringement facts and evidence of the infringer, and apply for a court injunction to prohibit the infringer from continuing the infringement. In order to ensure the effective implementation of economic compensation, the patentee may apply to the court for litigation preservation of an equal amount of the infringer's property while filing a lawsuit.
When filing a lawsuit in court, the court you choose to sue can be:
1. Patent Infringement dispute cases shall be under the jurisdiction of the People's Court of the place where the infringement occurred or where the defendant is domiciled. The places of infringement include:
(1) The manufacturing, use, offering for sale, sale, import, etc. of products accused of infringing invention or utility model patent rights Place of implementation
(2) The place where the use of the patented method is carried out, and the use, sale, sale, import and other activities of products directly obtained according to the patented method Place of implementation;
(3) Place of implementation of the manufacturing, sales, import and other activities of patented design products;
(4) The place where the act of counterfeiting the patent of others is committed;
(5) The place where the infringement results of the above-mentioned infringement occur.
2. The plaintiff onlyIf the manufacturer of an infringing product files a lawsuit but does not sue the seller, and the place of manufacture of the infringing product is inconsistent with the place of sale, the people's court of the place of manufacture has jurisdiction; if the manufacturer and seller are co-defendants, the people's court of the place of sale has jurisdiction; The seller is a branch of the manufacturer. If the plaintiff sues the manufacturer of the infringing product for manufacturing and sales in the place of sale, the People's Court of the place of sale has jurisdiction.
3. Patent ownership dispute cases shall be under the jurisdiction of the People's Court of the place where the defendant is domiciled.
4. Patent contract dispute cases shall be under the jurisdiction of the People's Court of the place where the defendant is domiciled or the place where the contract is performed. The parties to the contract may agree in the written contract to choose the jurisdiction of the people's court at the place where the defendant is domiciled, the place where the contract is performed, the place where the contract is signed, the place where the plaintiff is domiciled, and the place where the subject matter is located, but the provisions of hierarchical jurisdiction and exclusive jurisdiction shall not be violated.
2. What behaviors are patent infringements
(1) Implementing others’ patent behaviors
This type of patent infringement must meet two conditions:
(1) Without the permission of the right holder;
(2) For production and operation Purpose.
According to the provisions of Article 11 of the Patent Law, it has the following three specific forms:
1. Manufacturing, using, offering to sell, selling or importing products patented by others or utility model patented products;
2. Using methods patented by others and using , Promise to sell, sell or import products directly obtained in accordance with this method;
3. Manufacture, sell or import other people's design patented products.
(2) Counterfeiting others’ patents
This type of patent infringement refers to the infringement of patent rights According to Article 84 of the Patent Law, a person’s right to mark has the following four forms:
1. Without permission,Marking other people’s patent numbers on the products and product packages manufactured or sold;
2. Using other people’s patents in advertisements or other promotional materials without permission No., causing people to mistake the technology involved for other people’s patented technology;
3. Using other people’s patent numbers in contracts without permission, using A person mistook the technology involved in the contract as someone else’s patented technology;
4. Forged or altered someone else’s patent certificate, patent document or patent application document.
In addition, Article 59 of the Patent Law also stipulates another illegal act, namely "passing off patented products with non-patented products, passing off non-patented methods as "Patented method", this kind of behavior is not a manifestation of patent infringement, that is, it is not patent infringement, and does not bear patent infringement liability. It only bears general civil tort liability and will be punished by the department managing patent work.
The above is the answer given by the editor of Legal Savior Network on "How to deal with infringement during the patent application process". We can understand that infringement during the patent application process , you can take the above methods to protect your rights, I hope it will be helpful to you. If you still want to know other legal knowledge, the Legal Savior Network also provides professional lawyer online consultation services. You are welcome to have legal consultation again.
