1. How to determine infringement after failed patent application
1. Infringement The object should be a valid patent that enjoys patent rights in my country.
Patent rights are territorial and timely Authorized by the Intellectual Property Office.
Timeliness: Patent rights that have not expired due to payment of fees, declaration of invalidity, abandonment, etc. within the specified protection period.
Note: If a patent right is declared invalid for some reason, the patent right will be deemed to have not existed from the beginning, so even if someone else has preceded it Implementation does not constitute patent infringement.
2. There is illegal behavior
That is, the perpetrator does not have the permission of the patentee, There is an act of exploiting a patent for profit.
Note: According to Article 69 of the Patent Law, any of the following circumstances will not be regarded as infringement of patent rights:
(1) Patented products or products directly obtained according to patented methods are used, offered for sale, sold or imported after being sold by the patentee or an entity or individual licensed by him or her. of.
(2) The same product has been manufactured, the same method has been used before the patent application date, or the necessary preparations for manufacturing and use have been made, and it will only continue within the original scope Made and used.
(3) Foreign transportation vehicles that temporarily pass through China’s territorial land, territorial waters, and airspace shall be in accordance with the agreement signed by the country to which they belong and China or the international treaty to which they are both parties. , or in accordance with the principle of reciprocity, use relevant patents in the devices and equipment of the transportation vehicle for its own needs.
(4) Use relevant patents exclusively for scientific research and experiments.
(5) To provide information required for administrative examination and approval, manufacturing, using, or importing patented drugs or patented medical devices, and specifically manufacturing or importing patented drugs for them drugs or patented medical devices.
3. The perpetrator is subjectively at fault
The infringer’s subjective fault includes intentionality and negligence
Intentional: The actor knows that his behavior is an act that infringes the patent rights of others and carries out the behavior
Negligence: The actor committed an act that infringed the patent rights of others due to negligence or overconfidence
Note: Article 63 of the Patent Law Paragraph 2 stipulates that even if the perpetrator has no subjective fault, it still constitutes patent infringement, but he will not be liable for compensation.
4. It should be for the purpose of production and operation
The purpose of production and operation should also be One of the elements to determine patent infringement.
Article 11 of the Patent Law stipulates: After an invention-creation is granted a patent right, except as otherwise provided in this Law, no one may exploit the patent. That is to say, it must not be used for production and business purposes.
2. Relevant legal provisions
Article 60 of the Patent LawUsing a patent without the permission of the patentee is an infringement If a dispute arises over its patent rights, the parties shall resolve it through negotiation; if they are unwilling to negotiate or the negotiation fails, the patentee or interested party may bring a lawsuit to 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. EnterAt the request of the parties, the administrative department handling patent matters 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.
We can understand that whether a patent involves infringement can be judged from four aspects. If there is infringement, the application cannot be applied, and Disputes may also arise. The above is the relevant content compiled by the editor of Legal Savior Network for everyone. If you still have any questions, you can consult the relevant lawyers of Legal Savior Network.
