In the following five cases, anyone who uses a patent does not constitute infringement:
(1) Initial sale: After the patented product manufactured or imported by the patentee or the product directly obtained by the patented method is sold, using, promising or selling the product does not constitute patent infringement. This principle, also known as the "exhaustion principle", is applicable to patented products that are legally put into the market.
(2) Goodwill infringement: anyone who uses or sells a patented product that he doesn't know was manufactured or sold without the permission of the patentee or a product directly obtained according to the patented method for the purpose of production and operation, and can prove the legal source of the product, shall not be liable for compensation. This kind of situation is called "bona fide infringement" in theory, and the scope of behavior here is limited to "use" and "sale". For manufacturing or importing, according to the current law, the actor should or has the obligation to know whether the products he manufactures or imports are patented products.
(3) Prior implementation: If the same product has been manufactured before the patent application date, the same method has been used, 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 does not constitute infringement of the patent right.
(4) Temporary transit: The temporary transit of foreign means of transport through the territorial sea and airspace of China does not constitute an infringement of the patent right of its devices and equipment according to the agreement signed between the country to which it belongs and China or the international treaties to which it is a party, or according to the principle of reciprocity.
(5) Non-profit implementation: The exclusive use of relevant patents for scientific research and experiments does not constitute patent infringement. Its essence is that this kind of implementation behavior is not for the purpose of production and operation, and there is no competitive relationship with the patentee, so it will not infringe the market interests of the patentee.
Second, what is not a patent infringement?
(1) After the patented product manufactured or imported by the patentee or manufactured or imported with the permission of the patentee or the product directly obtained according to the patented method is sold, the patentee uses, promises to sell or sells the product;
(2) Having manufactured the same product, used the same method or made necessary preparations for its manufacture and use before the patent application date, and continuing to manufacture and use it only within the original scope;
(3) Foreign means of transport temporarily passing through China's territorial waters and airspace use the relevant patents in their devices and equipment for their own needs in accordance with the agreements signed between their countries and China or international treaties to which they are both parties, or on the principle of reciprocity;
(four) the use of relevant patents for scientific research and experiments.
If the use or sale of a patented product that is not known to be manufactured or sold without the permission of the patentee or a product directly obtained by a patented method is used for production and business purposes, it shall not be liable for compensation if it can prove the legal source of the product.