Legal analysis
According to Article 63 of the Patent Law, the following circumstances shall not be regarded as patent infringement:
1, the implementation of the first user.
According to the provisions of the Patent Law, if the same product has been manufactured before the patent application date or the necessary preparations have been made for its manufacture and use, and it continues to be manufactured and used only within the original scope, it will not be regarded as infringement. The conditions for the establishment of the right of first use are: (1) the implementer has manufactured the same product, used the same method or made necessary preparations for manufacturing and using before the patent application date when others obtained the patent right; (2) The invention-creation implemented by the implementer was developed or designed by the implementer himself, or was obtained by a legal transferee; (3) After others have obtained the patent right for the same invention-creation, the implementer can only manufacture or use it within the original scope.
2. exhaustion of patent rights
After the patentee manufactures, imports or allows others to manufacture or import the patented product or the product directly obtained according to the patented method is sold, anyone who uses, promises to sell or sells the product no longer needs the patentee's permission or authorization, which does not constitute infringement. This means that the patentee only enjoys the exclusive right to sell the patented product for the first time, and does not have the control or domination right to resell or use the patented product sold for the first time.
3. For scientific research and experimental purposes.
The exclusive use of patented products or patented methods for scientific research and experiments does not constitute patent infringement.
4. Temporary transit
Foreign land, sea and air transport vehicles that temporarily pass through China's territory, territorial sea or airspace need to use the machinery, devices and parts that enjoy the patent right in China for their own needs, and do not need the permission of the patentee in China, which does not constitute infringement.
legal ground
Article 62 of the Patent Law of People's Republic of China (PRC) * * * A unit or individual that has obtained a compulsory license for exploitation shall pay a reasonable royalty to the patentee, or handle the royalty in accordance with the provisions of relevant international treaties to which People's Republic of China (PRC) is a party. If the user fee is paid, the amount shall be negotiated by both parties; If both parties fail to reach an agreement, it shall be decided by the patent administration department of the State Council.