What are the elements of patent infringement
Patent infringement liability refers to the behavior of an actor who implements his patent for profit within the validity period of the patent without the permission of the patentee, unless otherwise provided by law.
The implementation mentioned here refers to the manufacture, use, sale, sale and import of the patented product for product patents. For process patents, It refers to using the patented method or using, offering to sell, selling, or importing products directly obtained according to the patented method. For industrial product design, it refers to manufacturing, selling, or importing the design product. Among them, promise to sell is an added content of the newly revised patent law.
So for patent infringement liability, it is considered that the main elements are: There are the following aspects:
(1) The object of infringement should be a valid patent that enjoys patent rights in my country. Only during the protection period does the patentee have exclusive rights. If the validity period expires, the invention has entered the public domain and can be implemented by anyone, so there is no issue of patent infringement. In addition, if a patent is revoked or declared invalid for other reasons, the patent is deemed to have ceased to exist. Therefore, even if someone else implements it, it is not enough to constitute patent infringement.
(2) There are illegal acts. That is, the perpetrator has exploited the patent for profit without the permission of the patentee.
(3) The perpetrator is subjectively at fault. The subjective fault of the infringer includes intentionality and negligence. The so-called intentionality means that the actor knows that his behavior is an infringement of the patent rights of others and carries out the behavior. For example, the infringer clearly knows that a product is a patented product, but manufactures the product without authorization for the purpose of production and operation; the so-called negligence means that the perpetrator infringes the patent rights of others due to negligence or overconfidence.
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