1. Implementation behaviors before the publication date of the invention patent and the date of authorization announcement of utility model and design shall not be regarded as infringement of patent rights.
Between the publication date of the invention patent and the authorization announcement date, that is, during the temporary protection period of the invention patent right, the unit or individual who implements the invention shall pay the right holder Appropriate royalties. To determine the implementation behavior, reference may be made to the applicable legal provisions on patent infringement.
The scope of protection requested by the applicant on the patent application date is inconsistent with the scope of patent protection at the time of patent announcement and authorization. The alleged infringing technical solutions fall under the above two protections. If the scope of the invention falls within the scope of the provisional protection, it shall be deemed that the alleged infringer has implemented the invention during the provisional protection period. If the alleged infringing technical solution only falls within one of the protection scopes, it shall be deemed that the alleged infringer did not implement the invention during the provisional protection period.
2. Manufacturing invention or utility model patented products means that the product technical solution recorded in the claims is realized, and the quantity and quality of the product do not affect the manufacturing behavior identification.
The following activities shall be deemed as manufacturing invention or utility model patented products:
(1) With The act of manufacturing products using different manufacturing methods, except for product claims that are limited by methods;
(2) Entrusting others to manufacture or marking "supervised production" on the product, etc. Participation behavior;
(3) The behavior of assembling components into patented products.
3. Manufacturing of patented design products means that the patented product in the pictures or photos submitted by the patentee when applying for a patent to the Patent Administration Department of the State Council is realized .
The use of invention or utility model patented products means that the technical functions of the product technical solutions recorded in the claims have been applied. will invadeIf a product infringing an invention or utility model patent is used as a component or intermediate product to manufacture another product, it shall be deemed to be the use of the patented product.
Using a patented method means that every step of the technical solution of the patented method recorded in the claims is realized, and the result of using the method does not affect whether it constitutes patent infringement. identification of rights.
4. The use of patented design products means that the functions and technical performance of the design products have been applied. The right of prohibition of a design patentee does not include the right to prohibit others from using its patented design products.
Elements that constitute patent infringement
Elements that constitute patent infringement include two aspects: form conditions and material conditions.
The formal requirements mainly include:
1) The execution involves a valid Chinese Patent;
2) The implementation must be without the permission or authorization of the patentee;
3) The implementation behavior must be for the purpose of production and business operations. Whether the perpetrator has subjective intention is not a formal requirement. However, it can be used as a basis to measure the severity of the circumstances.
The essential elements that constitute patent infringement are technical conditions and whether the actual implementation falls within the scope of patent protection. If the technical features involved by the actor fall within the scope of patent protection, then the actor has committed patent infringement. There are mainly the following forms of expression:
1) The technical features involved by the actor are all the same as those of the patent, which constitutes infringement;
2) The actor involves more technical features than those of the patent, which also constitutes infringement;3) Behavior The technical features involved may be the same as or different from the technical features of the patent. However, if the different technical features are equivalent to the technical features of the patent, they still constitute infringement; otherwise, they do not constitute infringement. The equivalence of technical features here means that ordinary technicians in the technical field can infer that the effect produced by replacing two technical features with each other is the same.
The determination of patent infringers is mainly based on their criminal behavior and whether the object of the crime belongs to the patent industry. Our country must vigorously protect patents, otherwise the harm to our country's intellectual property rights will be very huge. Learn more For legal knowledge, please go to the Legal Savior website for professional consultation.