How to determine patent infringement and how to determine patent infringement

How to determine patent infringement, patent infringement refers to the illegal act of carrying out a valid patent protected by law for the purpose of production and operation without the permission of the patentee. How to determine patent infringement? To determine indirect patent infringement, the following four points shall be unified:

1) The special product obtained by implementing the core technology of the patent is the object of indirect patent infringement. The object of a legal act refers to the object to which the act is directed. To determine indirect patent infringement, the object of the act should first be defined.

(2) Seeking improper benefits is the purpose of indirect patent infringement, and (3) the sale of patented core technology products should be an objective manifestation of indirect patent infringement. **When it comes to the types of indirect patent infringement, scholars generally divide patent indirect infringement into two categories, one is indirect infringement of providing relevant goods (including indirect infringement of patents providing relevant methods and steps), and the other is inducing or instigating others to commit patent infringement. (4) Correlation between indirect patent infringement and direct infringement There are three views in the academic community on the correlation between indirect patent infringement and direct infringement.

The first is the subordinate theory, which holds that indirect infringement and direct infringement of patents are joint infringement relationships, and indirect infringement should be premised on the establishment of direct infringement. The second is the independent theory, which holds that indirect patent infringement exists independently of direct infringement, and is not premised on the establishment of direct infringement; The third is the compromise theory, taking subordination as the principle and independence as the supplement. The above content is about how to determine patent infringement, if you want to know more, please call Bajie Intellectual Property ** customer service.

Conventional intellectual property, foreign-related intellectual property, intellectual property transactions. A dark horse enterprise in the Internet + intellectual property industry.

Off. Answers for you:

First of all, as an example, Company A and Company B are competitors to each other, and the battle between the two in the field of intellectual property is raging. Recently, Company A held its own patent grant text and pondered against the product of Company B:

Eh, does Company B's product infringe my patent right if it looks like my patented product?

According to the provisions of Article 64, Paragraph 1 of the Patent Law:

According to the relevant provisions of the Patent Law, in the process of determining whether the products of enterprise B infringe the patent rights of enterprise A, we should compare the products of enterprise B with the claims in the patent grant text of enterprise A. However, the substantive function is the same as that of the technical features in the claims, and the two can be regarded as equivalent technical features, and there is no doubt that the products of enterprise B infringe the patent rights of enterprise A.

Hope mine can help you!

Legal Analysis: After the patent right for invention and utility model is granted, except as otherwise provided in this Law, any unit or individual who, without the permission of the patentee, manufactures, uses, offers to sell, sells, or imports its patented products, or uses its patented process, and uses, offers to sell, sells, or imports products directly obtained in accordance with the patented process, without the permission of the patentee, is a patent infringement. After the design patent right is granted, any unit or individual who manufactures, offers to sell, sells or imports its patented design product for the purpose of production or business without the permission of the patentee shall constitute an infringement of the design patent.

Legal basis: Article 11 of the Patent Law of the People's Republic of China After the patent right for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, use, offer to sell, sell or import its patented products, or use its patented process, or use, offer to sell, sell or import products directly obtained in accordance with the patented process for the purpose of production and operation. After the design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, offer to sell, sell or import its design patented products for the purpose of production and operation.

1. Exploitation of the patents of others;

2. Without the permission or authorization of the patentee;

3. For the purpose of production and operation;

4. Circumstances that do not comply with the statutory exemption.

Article 11 of the Patent Law stipulates that after a patent right for invention or utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, use, offer to sell, sell or import its patented products, or use its patented process, or use, offer to sell, sell or import products directly obtained in accordance with the patented process for the purpose of production and operation.

After the 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, offer to sell, sell or import its design patented products for production and business purposes.

2. Determine the scope of protection of the patent right.

[Legal basis].Article 11 of the Patent Law.

After the right to patent for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, use, offer to sell, sell, or import its patented products for production or business purposes, or use its patented process, or use, offer to sell, sell, or import products directly obtained in accordance with the patented process.

1. The object of infringement is a valid patent. Patent infringement must be premised on the existence of a valid patent, and the implementation of technology before the grant of the patent, the patent that has been declared invalid, the patent abandoned by the patentee, or the technology whose patent term has expired does not constitute infringement. The Patent Law provides for a temporary protection system, whereby appropriate royalties shall be paid for the use of an invention patent after the publication of an application for a patent and before the grant of the patent right.

In the case of a dispute over the use of an invention after the publication of the patent application but before the grant of the patent right without paying the appropriate fee, the patentee shall, after the patent right is granted, request mediation by the department in charge of patent work, or file a lawsuit directly with the people's court.

2. There must be an act of infringement, that is, the actor has objectively carried out an act of infringing on the patent of others.

3. For the purpose of production and operation; The implementation of non-production and business purposes does not constitute infringement.

4. It violates the provisions of the law, that is, the actor's act of exploiting the patent is without the permission of the patentee and has no legal basis.

1. How to determine the amount of compensation for patent infringement.

Article 60 of the Patent Law of the People's Republic of China stipulates that infringement of the patent's patent without the permission of the patentee; The patentee or interested party may request the patent administration authority to handle the matter, or may directly file a lawsuit with the people's court. When the patent administration authority handles the case, it has the right to order the infringer to stop the infringement and compensate for the losses; If the parties are not satisfied, they may file a lawsuit with the people's court within three months from the date of receipt of the notice, and if they fail to file a lawsuit within the time limit and fail to perform, the patent administration authority may request the people's court to enforce the law.

1. With regard to compensation for patent infringement, the Answers to Several Questions Concerning the Trial of Patent Dispute Cases promulgated by the Supreme People's Court on February 9, 1992 clearly pointed out that the principle of fairness should be implemented in the compensation for damages for patent infringement, so that the patentee can be reasonably compensated for the actual losses suffered by the infringement. The amount of damages for patent infringement can be calculated as follows:

1) The actual economic loss suffered by the patentee due to the infringement shall be the amount of damages. Calculation method: If the sales volume of the patentee's patented products decreases due to the sale of the infringing products (including products produced using the patented processes of others) on the market, the total number of sales decreases multiplied by the profit of each patented product, which is the actual economic loss of the patentee.

2) The amount of compensation for losses shall be the total profit obtained by the infringer as a result of the infringement. Calculation method: The product of the infringer's profits from each infringing product (including products produced using the patented process of others) multiplied by the total number of products sold on the market is the total profit obtained by the infringer.

3) Compensation for damages in a reasonable amount less than the patent license fee.

For the above three calculation methods, the people's court may choose to apply them based on the different circumstances of the case. Where the parties agree to use other calculation methods to calculate the amount of damages, the people's court may allow it as long as it is fair and reasonable. The people's courts will follow the above principles in handling patent infringement compensation.

1. The act of manufacturing patented products without permission;

2. Intentional use of invention or utility model patented products;

3. Selling or promising to sell unlicensed patented products;

4. The use of patented methods and the acts of using, selling, or offering to sell products directly obtained in accordance with patented methods;

5. The act of importing patented products or products directly obtained in accordance with the patented process;

6. Counterfeiting other people's patents;

7. Counterfeiting patents.

1. What are the responsibilities for patent infringement?

1) Administrative responsibility.

In the case of patent infringement, the department in charge of patent work has the right to order the infringer to stop the infringement, order corrections, impose fines, etc., and the department in charge of patent work may also mediate the amount of compensation for patent infringement at the request of the parties.

2) Civil liability.

1. Cease the infringement.

2. Compensation for losses.

The amount of compensation for patent infringement shall be determined in accordance with the losses suffered by the patentee as a result of the infringement or the benefits obtained by the infringer; Where it is difficult to determine the losses suffered by the infringed party or the benefits obtained by the infringer, it may be reasonably determined by reference to the multiple of the patent royalty.

3. Eliminate the impact.

When the infringer causes damage to the goodwill of the patented product in the market due to the infringement, the infringer shall bear the legal responsibility for eliminating the impact in an appropriate manner and admit its infringement, so as to eliminate the adverse impact on the patented product.

3) Criminal responsibility.

If the circumstances are serious, the person directly responsible shall be investigated for criminal responsibility.

2. What are the circumstances that do not belong to patent infringement?

1) The patented product or the product directly obtained in accordance with the patented process is used, offered to be sold, sold or imported by the patentee or the unit or individual authorized by the patentee after the product has been sold by omission;

2) The same product has been manufactured, the same method has been used, or the necessary preparations for manufacture or use have been made before the date of application for the patent, and the manufacture or use has been continued only within the original scope;

3) The use of the relevant patents in the devices and equipment of foreign means of transport temporarily passing through China's territorial land, territorial waters or airspace in accordance with the agreements signed between the country to which they belong and China or the international treaties to which they are parties, or in accordance with the principle of reciprocity, for the needs of the means of transport itself;

4) The use of relevant patents for the purpose of scientific research and experiments;

5) Manufacturing, using, or importing patented drugs or patented medical devices for the purpose of providing information required for administrative examination and approval, as well as manufacturing or importing patented drugs or patented medical devices specifically for them.