How to determine design patent infringement of food packaging bags
First determine the scope of the infringement:
1. Product design content is generally divided into the following aspects: Simple shape Or pattern design; a design that combines shape and pattern; a design that combines shape and color; a design that combines pattern and color; a design that combines shape, pattern, and color.
2. It can be seen from the revised design definition : For designs that require color protection, shape and pattern are the basis of the design, and color is attached to the shape and pattern. Without shape or pattern, pure color will not be granted patent rights. That is to say, if the shape and pattern of the design patent applied for by the patent applicant is similar to an existing design, but only the color is different, the patent right will not be granted.
3. For a design that combines two or more elements, both elements must beOnly when they are the same or similar can they be judged to be the same or similar designs.
After determining the protection scope of the design patent right After that, we need to determine whether the alleged infringer has committed infringement. The fact that the alleged infringer has committed infringement is a prerequisite for design patent infringement. The Patent Law stipulates that after a design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, sell, or import its design patented products for production and business purposes. Implementing a patent without the permission of the patentee is an infringement of patent rights. "It can be seen from this that infringement of design patent rights should meet the following requirements:
Using the patent without the permission of the patentee will infringe the patent rights and cause disputes, which shall be resolved by the parties through negotiation; if the parties are unwilling to negotiate or the negotiation fails, the patentee or interested parties may If you file a lawsuit in the People's Court, you can also request the patent management department to handle it. When the patent management department determines that the infringement is established, it can order the infringer to immediately stop the infringement. If the party is dissatisfied, the patent administration department can order the infringer to stop the infringement immediately. Within 15 days of filing a lawsuit with the People's Court in accordance with the "Administrative Litigation Law of the People's Republic of China"; if the infringer does not file a lawsuit or stop the infringement upon expiration of the time limit, the department that manages patent work may apply to the People's Court for compulsory enforcement. For handling patent management work At the request of the parties, the department 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.
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