How to determine patent infringement, how to determine patent infringement

1. The implementation involves a valid Chinese patent; 2. The exploitation must be without the permission or authorization of the patentee; 3. The implementation must be for the purpose of production and operation. 4. It should be noted that the infringement of manufacturing, using, offering to sell, selling, or importing infringes the patent involved in the case is not a formal element as to whether the actor has subjective intent. However, it can be used as a basis for judging the severity of the circumstances and making the amount of financial compensation.

If the technical features of the alleged infringing product include all the technical features of the claims protected in the claims of the patent in question, it is deemed that the infringing product falls within the scope of protection of the patent in question. 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 for production and business purposes, or use its patented process, or use, offer to sell, sell or import products directly obtained in accordance with the patented process.

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.

Hello, patent infringement refers to the act of exploiting another person's patent for profit without the permission of the patentee and without legal basis during the validity period of the patent right. To determine whether a patent is infringing, it is necessary to compare whether the technical features of the other party's product fully cover the technical features in the independent claims of the patent, and if the necessary technical features constitute comprehensive coverage, it can be determined that infringement is constituted.

It has the following characteristics:

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.

If more details could be given, more detailed information could be made.

There are three ways to determine the infringement of utility model patents: 1. The principle of identical identity, also known as the principle of comprehensive coverage; 2. The principle of relative equivalence; 3. The principle of inferior invention. In practice, in order to determine whether a utility model patent has been infringed, the above three methods are generally used.

In general, the second method is used more frequently. Because in real life, no one will copy all the designs.

1.The act of exploitation involves a valid Chinese patent: 2

The exploitation must be without the permission or authorization of the patentee; 3.The implementation of the act must be for the purpose of production and operation. Whether or not the perpetrator had subjective intent is not a formal element.

However, the silver return is used as a basis for the world shed to measure the severity of the case.

Legal basis: Article 35 of the Patent Law of the People's Republic of China provides that within three years from the filing date of an application for an invention patent, the patent administration department may, at the request of the applicant at any time, conduct a substantive examination of the application; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to be withdrawn.

When the patent administration department deems it necessary, it may conduct a substantive examination of the invention patent application on its own.

Only if the following four elements are met at the same time can a patent infringement be constituted: (1) The object of infringement shall be a valid patent that enjoys patent rights in China. First of all, in view of the territorial nature of patent rights, a valid patent should generally refer to a patent authorized by the State Intellectual Property Office.

Secondly, in view of the timeliness of patent rights, only patents that have not expired due to payment, invalidation, abandonment, etc., within the specified period of protection, are valid. It is important to note that if a patent right is declared invalid for some reason, the patent right will be deemed to have not existed ab initio, so even if someone else has already implemented it, it is not enough to infringe the patent. (2) There is illegal conduct.

That is, without the permission of the patentee, the actor has the act of actually obstructing the use of specialization and profit for the purpose of profit. It should be noted that Article 63 of the Patent Law stipulates five types of acts that are not considered to be infringement, which are exceptions to patent infringement liability, and if the actor cannot provide evidence as a defense, the actor shall be deemed to have committed patent infringement and shall be liable in accordance with the law. (3) The perpetrator is subjectively at fault.

The subjective fault of the infringer includes intent and negligence. The so-called intent refers to the perpetrator who clearly knows that his act is an act that infringes the patent right of another person and commits the act; The so-called negligence refers to the act of infringing the patent rights of others due to negligence or overconfidence. However, there are exceptions, for example, the second paragraph of Article 63 of the Patent Law stipulates that even if the actor is not subjectively at fault, it constitutes patent infringement, but he is not liable for compensation.

4) It should be for the purpose of production and operation. Article 11 of the Patent Law stipulates that after an invention or creation has been 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 operation.

Therefore, the purpose of production and operation should also be one of the constitutive elements for judging patent infringement. After reading the above introduction, you should know how to determine patent infringement, and at this time, you should start from the four elements stipulated in the law, and if an act satisfies these four provisions at the same time, it can naturally be determined to be patent infringement. In this case, the actual damage caused to the patentee can be required from the infringer to make corresponding compensation.

The act of exploitation involves a valid Chinese patent: 2The exploitation must be without the permission or authorization of the patentee; 3.

The implementation of the act must be for the purpose of production and operation. Whether or not the perpetrator had subjective intent is not a formal element. However, it can be used as a basis for measuring the severity of the plot.

Patent infringement refers to the act of the actor violating the provisions of the Patent Law and exploiting the patent without the permission of the patentee. "Implementation" means the manufacture, use, offer for sale, sale and import of a patented product or the use of a patented process, as well as the use, offer to sell or sale of a product directly obtained pursuant to the patented process. The scope of protection of the patent right shall be subject to the claims recorded in the claims, and the description may interpret the claims.

The technical solution in a patent protected by the Patent Law is a combination of technical features described in the right document. If an invention-creation is made on the basis of prior art, the claims must contain the prior art, and the patent law protects neither distinguishing features nor prior art, but a complete scheme of the combination of prior art and distinguishing features included in the claims. Therefore, when comparing the facts of alleged infringement, the entire claim should be taken as the object of comparison, rather than just taking out the distinguishing features from the claim for comparison, and studying the similarities and differences between the two.

1. How to draft patent claims.

The claims shall be based on the description and clearly and concisely define the scope of the claimed patent protection. The claims shall record the technical features of the invention or utility model. Where there are several claims in the claims, they shall be numbered sequentially in Arabic numerals.

The scientific and technical terms used in the claims shall be consistent with those used in the description, and may have chemical or mathematical formulas, but shall not have illustrations. The technical features in the claims may refer to the corresponding marks in the drawings of the description, which shall be placed after the corresponding technical features and in brackets to facilitate the understanding of the claims. The drawing marks shall not be construed as a limitation of the claims.

2. It is not regarded as patent infringement.

The exploitation of a patent that has expired, is invalidated or abandoned does not constitute infringement; 2. There is a statutory infringement. Manufacturing, using, selling, offering to sell, or importing another person's patented product, or using another person's patented process, using, selling, or importing a product obtained through such process.

Civil Code of the People's Republic of China

Article 120:Where civil rights and interests are infringed upon, the infringed party has the right to request that the infringer bear tort liability.

Article 183:Where oneself is harmed by protecting the civil rights and interests of others, the infringer bears civil liability, and the beneficiary may give appropriate compensation. Where there is no infringer, the infringer has escaped, or is unable to bear civil liability, and the victim requests compensation, the beneficiary shall give appropriate compensation.

Article 1167:Where the tortious conduct endangers the safety of others' persons or property, the infringed party has the right to request that the infringer bear tortious liability such as stopping the infringement, removing obstructions, and eliminating dangers.

Article 1168:Where two or more persons jointly commit tortious acts, causing harm to others, they shall bear joint and several liability.

In this way, the patent infringement is determined: 1. Determine the corresponding technical characteristics of the allegedly infringing product. That is, according to the necessary technical features recorded in the claims, the technical features of the alleged infringing product are decomposed accordingly.

Legal basis. Article 11 of the Patent Law of the People's Republic of China 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 is not allowed to manufacture, offer to sell, sell or import its design patent products for the purpose of noisy production and operation.