How to identify and remedy patent infringement
1. The object of infringement should be a valid patent owner in my country patent. First of all, in view of the regional nature of Patent rights, valid patents should generally refer to patents authorized by the State Intellectual Property Office. Secondly, in view of the timeliness of patent rights, only patent rights that have not expired due to payment, invalidation, abandonment, etc. within the specified protection period are valid patents. It should be noted that if a patent right is declared invalid for some reason, the patent right will be deemed to have ceased to exist from the beginning. Therefore, even if someone else has implemented it before, it is not enough to constitute patent infringement.
2. There are illegal activities. That is, the perpetrator has exploited the patent for profit without the permission of the patentee.
It should be noted that the Patent Law stipulates The five types of behavior that are not considered to be infringement are exceptions to liability for patent infringement. If the actor cannot provide evidence as a defense, the actor should be determined to have constituted patent infringement and bear liability according to law.
3. The perpetrator is subjectively at fault. The subjective fault of the infringer includes intentionality and negligence. The so-called intentionality refers to behaviorA person knowingly commits an act that infringes upon the patent rights of others; negligence means that the actor commits an act that infringes upon the patent rights of others due to negligence or overconfidence. However, there are exceptions. For example, Article 63, Paragraph 2 of the Patent Law 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. Article 11 of the Patent Law stipulates: After an invention-creation is granted a patent right, no one may exploit the patent, except as otherwise provided in this Law, and the exploitation shall not be for the purpose of production or business. Therefore, the purpose of production and operation should also be one of the constituent elements for judging patent infringement.
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