What should I do if a patent is infringed? How do you determine if a patent has been infringed?

After discovering that the infringer has infringed its patent right, the patentee may also file a civil lawsuit directly with the relevant people's court at the place where the infringement occurred or where the defendant is located, demanding that the infringement be stopped and compensation for economic losses. At the same time, it has the right to apply for litigation preservation of the infringer's infringement facts and evidence, and apply for a court injunction to prohibit the infringer from continuing the infringement. In order to ensure the effective enforcement of economic compensation, the patentee may apply to the accepting court for litigation preservation of the infringer's property of the same amount at the same time as filing a lawsuit.

When filing a lawsuit in court, the court that chooses to sue may have:

1) The place where the manufacture, use, offer to sell, sale, import, etc. of the product accused of infringing the patent right of invention or utility model are carried out.

2) the place where the use of the patented process is carried out, and the place where the use, offer to sell, sale, import and other acts of the products directly obtained in accordance with the patented process are implemented;

3) the place where the manufacturing, sales, importation and other acts of the patented design product are carried out;

4) the place where the act of counterfeiting another person's patent is committed;

5) The place where the infringement result of the above-mentioned infringement occurs.

2. The plaintiff only files a lawsuit against the manufacturer of the infringing product, but does not sue the seller, and if the place of manufacture of the infringing product is inconsistent with the place of sale, the people's court at the place of manufacture has jurisdiction; If the manufacturer and the seller are joint defendants, the people's court at the place of sale has jurisdiction; If the seller is a branch of the manufacturer, and the plaintiff sues the manufacturer of the infringing product for manufacturing or selling at the place of sale, the people's court at the place of sale has jurisdiction.

3. Patent ownership disputes shall be under the jurisdiction of the people's court at the place where the defendant is domiciled.

4. In the case of patent contract disputes, the people's court at the place where the defendant is domiciled or where the contract is performed shall have jurisdiction. The parties to a contract may agree in a written contract to choose the jurisdiction of the people's court at the place where the defendant is domiciled, the place where the contract is performed, the place where the contract is signed, the place where the plaintiff is domiciled, and the place where the subject matter is located, provided that the provisions on hierarchical jurisdiction and exclusive jurisdiction are not violated.

1. The patent itself is novel and inventive. To determine whether a patent is infringing, Xiangheng needs 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;

2. Whether the product or technical solution involved in the case falls within the scope of protection requested by the patent claims;

3. Manufacturing, using, or promising to sell the products involved in the case for the purpose of production and business operation without the permission of the patentee.

How to deal with patent infringement.

1. Negotiation and settlement: The patentee and the alleged infringer can negotiate on their own or reach a settlement agreement under the mediation and mediation of other third parties to resolve the dispute;

2. Administrative investigation and punishment, in the case of preliminary evidence, the patentee may report to the Patent Office and other relevant administrative departments, and the patentee shall take administrative measures to investigate and verify the infringer's infringement and make a determination of whether it is infringing;

Legal basisArticle 60 of the Patent Law of the People's Republic of China.

When a patent administration department makes a decision to grant a compulsory license for exploitation, it shall promptly notify the patentee and register and publish it.

The decision to grant a compulsory license shall be based on the reasons for the compulsory license and stipulate the scope and time for implementation. When the grounds for compulsory license are eliminated and do not occur again, the patent administration department shall, at the request of the patentee, make a decision to terminate the compulsory license after examination.

3) Passing off non-patented products as patented products.

1) The patent itself is novel and inventive.

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.

2) Whether the product or technical solution involved in the case falls within the scope of protection requested in the claims of the patent.

It is necessary to divide the technical features of the patent claims and the alleged infringing technical solution, and then compare the characteristics of the corresponding technical features, and then determine whether the alleged infringing technical solution constitutes the same infringement of the patent claims.

3) Manufacturing, using, or promising to sell the products involved in the case for the purpose of producing the base business without the permission of the patentee.

1. The concept and characteristics of infringement.

The concept of tort: the illegal act of the actor who infringes on the person, property and other legitimate rights and interests due to his fault and shall bear civil liability in accordance with the law, as well as other tortious acts that shall bear civil liability in accordance with the special provisions of the law.

First, the tort is an act that infringes upon the legitimate rights and interests of others, and such an act must cause damage. Acts that are merely non-harmful do not constitute infringement. Damages include material damage such as money, as well as bodily injury, death, and moral damage.

Only the existence of damage can reflect the lawful property of the State, the collective or others, or others.

Second, the tort is a civil offense. There are generally three types of civil violations; The first is the act of infringing on the property rights, personal rights, intellectual property rights or other legitimate rights and interests of others, referred to as torts.

2. How to deal with patent infringement.

After a patent is infringed, there are generally three ways to resolve it.

1) Negotiation and settlement: The patentee and the alleged infringer may reach a settlement agreement through negotiation on their own or under the mediation and mediation of other third parties to resolve the dispute. When the intention to negotiate is proposed, an infringement warning letter can generally be sent to the infringing party, but the warning letter has a deterrent effect and is not legally binding.

2) Administrative investigation and punishment: If the patentee has preliminary evidence, it may report to the Patent Office and other relevant administrative departments, and the patentee shall take administrative measures to investigate and verify the infringer's infringement and make a determination of whether it is infringing. In the course of administrative investigation and handling, the relevant patent administration department may, on the basis of the application of the relevant parties, mediate the civil liability for patent infringement.

3) Filing a lawsuit with the court: The patentee may also file a civil lawsuit in person with the relevant parties in the place where the infringement occurred, the place where the defendant is located, and the court to demand the cessation of the infringement and compensation for economic losses.

1) the exploitation 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. 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.

The substantive elements that constitute patent infringement, that is, the technical conditions, and whether the substantive implementation of the act falls within the scope of protection of the patent. If the technical features involved by the actor fall within the scope of the protection of the patent right, then the actor constitutes patent infringement. There are mainly the following manifestations:

1) If the technical features involved by the actor are all the same as those of the patent, infringement is constituted;

2) the perpetrator involves more technical features than the technical features of the patent, which also constitutes infringement;

3) The technical features involved by the actor are the same as those of the patent, but the different technical features are equivalent to the technical features of the patent and still constitute infringement; Otherwise, there is no infringement.

The equivalence of technical features here means that an ordinary person skilled in the technical field can deduce that the two technical features are replaced by each other, and the effect is the same.

Patent infringement refers to the illegal act of committing a valid patent protected by law for the purpose of production and operation without the permission of the patentee. Patent infringement is divided into two categories: direct infringement and indirect infringement. Direct Infringement.

This refers to an act that infringes the patent rights of another person that is directly carried out by the actor. Its manifestations include: the act of manufacturing, offering to sell, selling, or importing patented products for inventions, utility models, and designs; The act of using the patented product of invention or utility model; Indirect Infringement.

This refers to the fact that the actor's own conduct does not directly constitute an infringement of the patent right, but carries out the act of inducing, instigating, instigating, or helping others to infringe the patent right. Indirect infringement is usually to create conditions for direct infringement, and the common manifestations are: the actor sells parts and components of the patented product, molds specially used to implement the patented product, or machinery and equipment used to implement the patented process; The act of transferring the patented technology without the authorization or entrustment of the patentee.

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.

After a patent infringement dispute arises, the parties may resolve it through negotiation, and if the parties are unable or unwilling to resolve it through negotiation: 1) they may request the patent management department to handle it, and when the patent management department finds that the infringement is established, they may order it to immediately stop the infringement, and the party concerned is not satisfied with the handling of the patent affairs department, and may file an administrative 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 file a lawsuit and does not stop the infringement after the expiration of the 15th day, the patent administration department may apply to the people's court for compulsory enforcement; 2) If the parties are unable or unwilling to mediate, they may also file a lawsuit with the people's court for settlement.

If a party has a dispute over the right to apply for a patent or the ownership of a patent right, and has requested the patent administration department to handle it or file a lawsuit with the people's court, it may request the patent administration department to suspend the procedures for examination and approval of the patent right.

After the decision of the administrative patent department or the judgment made by the people's court takes effect, the party concerned shall submit a written application for resumption of the procedure to the patent administration department and go through the relevant formalities, and the request shall be attached to the decision of the administrative patent department or the judgment of the effective people's court.