Pharmaceutical patents, how the patentee discovers the infringement of the patent for the preparatio

1. Collect evidence on your own and entrust a lawyer to investigate and collect evidence.

Due to the highly specialized nature of intellectual property cases, it will be difficult for the right holder to accurately grasp the direction and scope of the evidence collection. A lawyer is a lawyer who specializes in legal work and makes it his profession to provide legal services to society. Lawyers not only have rich legal knowledge, but also have rich experience in handling cases and proficient litigation skills, and can make appropriate choices for parties at different stages of litigation.

Generally speaking, it is much more convenient for a lawyer to investigate and collect evidence than for a client to investigate and collect evidence, and the scope of evidence collection is also broader and more accurate. In judicial practice, judges often treat lawyers differently and provide more convenience.

2. Apply to the notary public for evidence preservation.

One of the statutory duties of a notary public is the preservation of evidence. Notarized evidence has the effect of presumption of truth. Article 59 of the Code of Civil Procedure provides:

The people's courts shall confirm the validity of notarized legal acts, legal facts, and documents. However, there is no case where there is evidence to the contrary that is sufficient to overturn the notarial certificate. The effect of the preservation of evidence by a notary public is the same as that of the preservation carried out by the court ex officio.

Before litigation, the parties can make full use of the notary public to collect and preserve evidence, which is an effective measure to prepare for litigation.

3. Apply to the court for pre-trial evidence preservation.

Applications for pre-trial evidence preservation are widely used in intellectual property infringement cases. After the preservation measures, the parties or interested parties shall file a lawsuit within the statutory time limit. If no lawsuit is filed with the court, such preservation measures shall be lifted, or the relevant evidence shall be destroyed or returned, and the applicant shall also be liable for compensation for the losses caused.

4. Apply to the people's court to collect evidence.

Article 64 of China's "Civil Procedure Law" stipulates that the people's court shall investigate and collect evidence that the parties and their ** persons cannot obtain on their own due to objective reasons, or evidence that the people's court deems necessary for the trial of the case. Based on this, the parties often file an application for evidence at the same time as filing a patent infringement, trademark infringement and copyright infringement lawsuit.

5. Apply to the administrative organ for investigation and evidence collection.

Chapter 5 of China's Measures for Administrative Enforcement of Patents has a special chapter on investigation and evidence collection. In the course of investigating and handling cases, the department in charge of patent affairs may, as necessary, investigate and collect relevant evidence ex officio. Contracts, account books and other relevant documents related to the case can be consulted and copied; questioning parties and witnesses; On-site inspections are carried out by means of measurement, photography, and videography.

If it is suspected of infringing the patent right of the manufacturing method, the department in charge of patent work may require Sun Fan to conduct an on-site demonstration. If a product patent is involved, samples may be taken from the allegedly infringing product.

Legal analysis: In a patent infringement lawsuit arising from an invention patent for a new product manufacturing method, the unit or individual that manufactures the same product bears the burden of proof that the manufacturing method of the product is different from the patented process; In a lawsuit for infringement of an invention patent for a manufacturing method of a new product, the patentee only needs to provide the fact that its patent has been infringed, and the other party shall provide evidence to prove that its manufacturing method is not a patented process, or that it is not regarded as an infringement of patent rights in accordance with the law.

Legal basis: Intellectual Property Law of the People's Republic of China

1) Publishing a work without the permission of the copyright owner;

2) Without the permission of the co-authors, publishing a work created in collaboration with others as a work created by oneself alone;

3) Signing the works of others without participating in the creation of works for the purpose of seeking personal fame and wealth;

4) Distorting or tampering with the works of others;

5) Without the permission of the copyright owner, the use of works by means such as performance, exhibition, distribution, filming, television, video recording, or adaptation, translation, annotation, etc., except as otherwise provided by this Law;

6) Using the works of others and failing to pay remuneration in accordance with provisions;

7) Without the performer's permission, live-streaming their performance;

Article 46: Where any of the following infringements are committed, civil liability such as stopping the infringement, eliminating the impact, publicly apologizing, and compensating for losses shall be borne on the basis of the circumstances, and administrative punishments such as confiscation of illegal gains and fines may be given by the administrative copyright management departments:

1) Plagiarizing or plagiarizing the works of others;

2) Without the permission of the copyright owner, reproducing and distributing their works for the purpose of making profits;

3) Publishing books for which others enjoy exclusive publishing rights;

4) Making audio or video recordings of performers' performances for publication without their permission;

5) Reproducing and distributing audio or video recordings produced by them without the permission of the producers of audio or video recordings;

6) Reproducing and distributing radio or television programs produced by radio or television stations without the permission of their radio or television stations;

7) Producing or counterfeiting works of art signed by others.

Legal analysis: In a patent infringement lawsuit arising from an invention patent for a new product manufacturing method, the unit or individual that manufactures the same product bears the burden of proof that the manufacturing method of the product is different from the patented process; In a lawsuit for infringement of an invention patent for a manufacturing method of a new product, the patentee only needs to provide the fact that its patent has been infringed, and the other party shall provide evidence to prove that its manufacturing method is not a patented process, or that it is not regarded as an infringement of patent rights in accordance with the law.

Legal basis: Intellectual Property Law of the People's Republic of China

1) Publishing a work without the permission of the copyright owner;

2) Without the permission of the co-authors, publishing a work created in collaboration with others as a work created by oneself alone;

3) Those who did not participate in the creation of the work, but signed the works of others in order to seek personal fame and fortune;

4) Distorting or tampering with the works of others;

5) Without the permission of the copyright owner, the use of works by means such as performance, exhibition, distribution, filming, television, video recording, or adaptation, translation, annotation, etc., except as otherwise provided by this Law;

6) Using the works of others and failing to pay remuneration in accordance with provisions;

7) Without the permission of the performer Ming Kuan, live streaming their performance;

Article 46: Where any of the following infringements are committed, civil liability such as stopping the infringement, eliminating the impact, publicly apologizing, and compensating for losses shall be borne on the basis of the circumstances, and administrative punishments such as confiscation of illegal gains and fines may be given by the administrative copyright management departments:

1) Plagiarizing or plagiarizing the works of others;

2) Without the permission of the copyright owner, reproducing and distributing their works for the purpose of making profits;

3) Publishing books for which others enjoy exclusive publishing rights;

4) Making audio or video recordings of performers' performances for publication without their permission;

5) Reproducing and distributing audio or video recordings produced by the producer of the audio or video recording without cheating, with the permission of the producer of the audio or video recording;

6) Reproducing and distributing radio or television programs produced by radio or television stations without the permission of their radio or television stations;

7) Producing or counterfeiting works of art signed by others.

In a patent infringement lawsuit arising from an invention patent for a new product manufacturing method, the unit or individual that manufactures the same product shall bear the burden of proof that the manufacturing method of the product is different from the patented process; In a lawsuit for infringement of an invention patent for a manufacturing method of a new product, the patentee only needs to provide the fact that its patent has been infringed, and the other party shall provide evidence to prove that its manufacturing method is not a patented process, or that it is not regarded as an act of infringing the patent right in accordance with the law.

The principles of patent application are as follows:

1. The principle of formal legality. All formalities for applying for a patent shall be handled in written form or in other forms prescribed by the Patent Office of the State Intellectual Property Office, otherwise it shall not be effective;

2. The principle of unity. Also known as the "one invention, one application principle", it means that a patent application can only be filed for one invention-creation in a patent application document. However, two or more inventions or utility models that belong to a general invention idea may be filed as one; Two or more designs for the same class and in a set** or product used may be filed as one application;

3. First-in-the-first principle. If two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the person who filed first;

4. The principle of priority. If a patent applicant files a patent application for an invention-creation with respect to the same subject matter within the statutory time limit after filing a patent application for his invention-creation for the first time, the date of the first application shall be the filing date, and this right is called priority, and the so-called statutory time limit here is the priority period.

Legal basisArticle 9 of the Patent Law of the People's Republic of China.

Only one patent can be granted for the same invention-creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention on the same day, and the utility model patent right obtained first has not been finally lost, and the applicant declares that he has abandoned the utility model patent right, the invention patent right may be granted. If two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the person who filed the first invention.

Legal Analysis: The production method of the drug can be patented. The production method of the patented drug must be novel, inventive and practical.

According to the relevant laws and regulations of China, the invention and utility model for which a patent right is granted shall be novel, inventive and practical. Novelty means that the invention or utility model does not belong to the prior art; Nor has any unit or individual filed an application for the same invention or utility model with the patent administration department before the filing date, and recorded in the patent application documents or published patent documents published after the application date. Inventiveness refers to the fact that, compared with the prior art, the development has outstanding substantive features and significant progress, and the utility model has substantial characteristics and progress.

Utility means that the invention or utility model can be manufactured or used and can produce positive effects.

Legal basis: Article 22 of the Patent Law of the People's Republic of China for which a patent right is granted shall be novel, inventive and practical.

Novelty means that the invention or utility model does not belong to the prior art; Nor has any unit or individual filed an application for the same invention or utility model with the patent administration department before the filing date, and recorded in the patent application documents or published patent documents published after the application date.

Inventive step refers to the fact that the invention has outstanding substantive features and significant progress compared with the prior art, and the utility model has substantial features and progress.

Utility means that the invention or utility model can be manufactured or used and can produce positive effects.

For the purposes of this Law, the term "prior art" refers to technology that was known to the public at home and abroad before the filing date.

Legal analysis: According to the provisions of the State Intellectual Property Office on the method of marking the patent mark and the patent number: During the validity period of the patent right after the grant of the patent right, the patentee may mark the patent mark and patent number on the patented product, the product directly obtained in accordance with the patented process or the packaging of the product.

Where the patent mark and patent number are marked, the following content shall be indicated: (1) The category of the patent right shall be marked in Chinese, such as Chinese invention patents, Chinese utility model patents, and Chinese design patents; (2) The patent number of the patent right granted by the State Intellectual Property Office, where zl represents the patent.

The first and two digits indicate the age of filing the patent application, the third digit indicates the patent category, and the fourth digit and then the serial number and computer check digit.

Legal basis: Article 339 of the Civil Code of the People's Republic of China Unless otherwise agreed by the parties, the right to apply for a patent belongs to the research and development party. If the R&D person obtains the patent right, the client may exploit the patent free of charge.

If the client studies the transfer of the right to apply for a patent by the concealed issuer, the client shall enjoy the right of priority to receive the assignment under the same conditions.

Patent right refers to the right of the patentee to use, benefit and dispose of his invention and creation exclusively within the scope prescribed by law, and to exclude the interference of others. Patents are temporal, territorial and exclusive.