What if my patent is used by someone else?

Collect evidence for negotiation or prosecution.

The following measures should be taken in a timely manner:

1. Preserve and fix the other party's infringement evidence through notarization and other means.

2. Send an official letter asking the other party to stop the infringement and negotiate compensation for losses.

3. Sue the court to demand that the other party stop the infringement and compensate for the loss.

When filing a lawsuit with the court, the lawsuit shall be filed with the Intermediate People's Court of the place where the infringement occurred or where the defendant is domiciled, and a search report made by the patent administration department shall be issued at the time of filing a lawsuit.

Several Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Patent Dispute Cases

Article 2 The first-instance cases of patent disputes shall be under the jurisdiction of the intermediate people's courts of the provinces, autonomous regions and municipalities directly under the Central Government where the people's governments are located and the intermediate people's courts designated by the Supreme People's Court.

The place of infringement includes: the place where the manufacturing, use, offering to sell, sell, import and other acts of the alleged infringement of the invention or utility model patent are carried out; the place where the use of the patented process is carried out, and the place where the use, offer to sell, sell, import and other acts of the product directly obtained in accordance with the patented process are implemented; the place where the manufacturing, sale, import, etc. of the patented design product are carried out; The place where the act of passing off another person's patent is committed. The place where the infringement result of the above-mentioned infringement occurred.

Article 8 The plaintiff who initiates a lawsuit for infringement of the patent right of a utility model shall issue a search report made by the patent administration department at the time of filing the lawsuit.

Legal analysis: If your patent is infringed by others, you need to collect evidence to prove that you enjoy the patent right or the right to license the patent. It is also necessary to provide evidence to prove that others have committed or will carry out acts that infringe patent rights, and there are three ways to solve the problem: the first cover calendar.

1. The two parties shall resolve the dispute through negotiation. Clause.

2. Administrative adjudication or coordination. Clause.

3. Filing a lawsuit with the court.

Legal basis: Law of the People's Republic of China on the Exploitation of Exclusive Goods Article 65 Where the exploitation of the patent without the permission of the patentee is an infringement of the patentee's patent rights, and a dispute arises, the parties shall settle the dispute through negotiation; If the patentee is unwilling to negotiate or fails to reach an agreement, the patentee or interested party may file a lawsuit with the people's court, or may request the department in charge of patent work to handle the matter. If the department in charge of patent affairs finds that the infringement is established, it may order the infringer to immediately stop the infringement, and if the party concerned is not satisfied, it may file a lawsuit with the people's court in accordance with the Administrative Litigation Law of the People's Republic of China within 15 days from the date of receipt of the notice of disposition; If the infringer does not sue and does not stop the infringement after the expiration of the time limit, the department in charge of patent affairs may apply to the people's court for compulsory enforcement.

At the request of the parties, the department responsible for the administration of patent work may mediate the amount of compensation for patent infringement; If mediation fails, the parties may file a lawsuit with the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

If your patent is infringed by others, you need to collect evidence to prove that you enjoy the patent right or the right to use the patent for deferred closure. It is also necessary to provide evidence to prove that others have committed or will commit acts of patent infringement, and there are three ways to solve the problem: first.

1. The two parties shall resolve the dispute through negotiation. Clause.

2. Administrative adjudication or coordination. Clause.

3. Filing a lawsuit with the court. Pursuant to Article 65 of the Patent Law of the People's Republic of China, if the patentee exploits his patent without the permission of the patentee, that is, infringes upon the patentee's patent right, and a dispute arises, the parties shall settle it through negotiation; If the patentee is unwilling to negotiate or fails to reach an agreement, the patentee or interested party may file a lawsuit with the people's court, or may request the department in charge of patent work to handle the matter.

If the department in charge of patent affairs finds that the infringement is established, it may order the infringer to immediately stop the infringement, and if the party concerned is not satisfied, it may file a lawsuit with the people's court in accordance with the Administrative Litigation Law of the People's Republic of China within 15 days from the date of receipt of the notice of disposition; If the infringer does not sue and does not stop the infringement after the expiration of the time limit, the department in charge of patent affairs may apply to the people's court for compulsory enforcement. At the request of the parties, the department in charge of patent work may mediate the amount of compensation for patent infringement; If mediation fails, the parties may file a lawsuit with the People's Court in accordance with the Civil Procedure Law of the People's Republic of China.

Patents can be obtained for inventions, utility models and designs. An invention refers to a new technical solution or method proposed for a product, process or improvement thereof. Inventions include:

Technical solutions for operation methods, manufacturing methods, technological processes, etc. A utility model refers to a new technical solution for the shape, structure or combination thereof of a product that is suitable for practical use.

Article 45 of the Patent Law of the People's Republic of China As of the date of the announcement of the grant of the patent right by the patent administration department, if any unit or individual considers that the grant of the patent right does not comply with the relevant provisions of this law, it may request the patent administration department to declare the patent right invalid. Article 46 of the Patent Law of the People's Republic of China The patent administration department shall examine and make a decision on the request for invalidation of the patent right in a timely manner, and notify the applicant and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department.

If a person is dissatisfied with the decision of the patent administration department to declare the patent right invalid or to maintain the patent right, he or she may file a lawsuit with the people's court within three months from the date of receipt of the notice. The people's court shall notify the opposing party to the invalid declaration request to participate in the litigation as a third party.

I took a look at the others.

There are a couple of issues to point out:

1. If your patent is ABCD, the patent applied for by the other party earlier is ABC;

In this case, your patent is a subordinate patent, and you can obtain a patent right as long as you make improvements on the basis of the previous patent when the patent is granted, and the improvement points meet the novelty, inventiveness and practicability;

However, in this case, once you manufacture, use, sell, offer to sell or import the patented product (ABCD), you must be infringing the patent of the other party (ABC); Just like the "patent egg", the right to exploit can be obtained through compulsory licensing, but there has not been a single case of compulsory licensing since the implementation of the Chinese Patent Law. The most reasonable way to do this is to cross-license each other.

2. The principle adopted in China's patent infringement litigation is the principle of filling in, that is, how much the patentee loses, how much the infringer compensates (of course, the amount must be supported by relevant evidence), and there is no so-called malicious infringement in China, which is different from the United States, which will have several times the punitive damages once it is determined that the malicious infringement is determined.

1) Filing a lawsuit with the people's court (provided that the patent right is strong, the evidence of infringement is complete, the infringement is serious, or the infringement is seriously damaged); (2) Submit an application to the patent administration authority for administrative mediation (the right holder has obtained preliminary macro sources or evidence, and the scale of the infringement is not large, or the loss is not serious); (3) Issue a warning letter to the infringer (the right holder has preliminary evidence, and the scale of the infringement is not large or the loss is not serious).