1. What is the limitation of action for patent infringement?
According to the Patent Law of People's Republic of China (PRC), the limitation of action for patent infringement is two years, counting from the date when the patentee or interested party knows or should know about the infringement. After the publication of the application for a patent for invention, before the patent right is granted, the limitation period for the patentee to request payment of the royalties is two years, counting from the date when the obligee knows or should know that others are using his invention-creation, but if the patentee knew or should have known before the patent right was granted, counting from the date when the patent right was granted.
The judicial interpretation of "Several Provisions on the Applicable Law in the Trial of Patent Disputes" in People's Republic of China (PRC) and the Supreme People's Court stipulates: "The limitation period for patent infringement is two years, counting from the date when the patentee or interested party knows or should know about the infringement. If the obligee brings a lawsuit for more than two years, and the infringement continues at the time of the lawsuit, the people's court shall order the defendant to stop the infringement within the validity period of the patent right, and the amount of infringement damages shall be calculated within two years from the date when the obligee brings a lawsuit to the people's court. " That is to say, if the obligee files a lawsuit after the limitation of two years, if the patent right is within the validity period, the people's court should still judge the defendant to stop the infringement, and the claim for compensation can be pushed forward for two years from the date of filing the lawsuit, that is, the part that exceeds two years will not be supported, and the judgment should still be made after the limitation of two years to ensure the rights and interests of the patentee and the punishment for the infringer.
Whether the two-year statute of limitations is effective or not, the starting date becomes the key. In the patent law and judicial interpretation, it is clearly stipulated that the calculation should start from "knowing" or "should know". The legal knowledge means that the obligee or interested party knows that the infringement has occurred and his rights are infringed; However, knowing clearly means that the obligee or interested party objectively has the conditions and possibilities to know about the infringement, but does not know that their rights have been infringed due to subjective carelessness. If he knows it later, he should also calculate the limitation of action from the date when the conditions objectively exist. For example, two years ago, the infringer publicly publicized or participated in an exhibition of infringing products. Because the obligee was subjectively at fault, he didn't know that his rights had been infringed, but it was only two years later that he realized that the limitation of action should still be counted from two years ago.
Second, the performance of patent infringement
1, direct infringement.
It mainly refers to manufacturing, using, selling, promising to sell or importing patented products of inventions and utility models or patented products obtained by patented methods, and manufacturing, selling, promising to sell or importing patented products of design for the purpose of production and operation without the permission of the patentee.
Its manifestations include:
(1) the act of manufacturing patented products of inventions, utility models and designs;
(2) the act of using patented products of inventions and utility models;
(3) promising to sell patented products of inventions, utility models and designs;
(4) the act of selling patented products of inventions, utility models or designs;
(5) the act of importing patented products of inventions, utility models and designs;
(6) using patented methods and using, promising to sell, selling or importing products directly obtained according to patented methods;
(7) the act of counterfeiting others' patents. For the purpose of production and operation, using or selling a product that is not known to be patented and manufactured and sold without the permission of the patentee or a product that is directly obtained according to the patented method, which can prove the legal source of the product, is still a patent infringement, and it is necessary to stop the infringement but not bear the liability for compensation.
2, the act of counterfeiting patents
Specifically, it includes the following contents:
(1) Without permission, mark the patent number of others on the products manufactured or sold by it or on the product packaging;
(two) without permission, using the patent number of others in advertisements or other promotional materials, making people mistake the technology involved for the patented technology of others;
(3) Using someone else's patent number in a contract without permission, causing people to mistake the technology involved in the contract for the patented technology of others;
(4) Forging or altering other people's patent certificates, patent documents or patent application documents.
3, the act of counterfeiting patents
The act of impersonating a patent refers to the act of impersonating a patented product with a non-patented product and a patented method with a non-patented method, including the following acts:
(1) manufacturing or selling non-patented products marked with patent marks;
(two) after the patent right is declared invalid, the patent mark is continued to be marked on the products manufactured or sold;
(3) Non-patented technology is called patented technology in advertisements or other promotional materials;
(4) Non-patented technology is called patented technology in the contract;
(5) Forging or altering patent certificates, patent documents or patent application documents.
4. Indirect infringement.
This means that the actor's own behavior does not directly constitute an infringement of the patent right, but he has induced, encouraged, abetted and helped others to infringe the patent right. For example, the actor knows that the products involved are raw materials, intermediate products, spare parts and equipment. , it can only be used to implement a specific invention or utility model patent, but it is still provided to a third party to infringe the patent right, and the obligee claims that the actor and the third party shall bear joint civil liability, and the people's court shall support it; If the third party's implementation is not for the purpose of production and operation, and the obligee claims that the actor shall bear civil liability, the people's court shall support it.
Indirect infringement should pay attention to the following points:
(1) Transferring patented technology without the authorization or entrustment of the patentee. At this time, if the transferee uses the patented technology to manufacture patented products, then the transferee and the transferor constitute * * * infringement and shall bear joint liability.
(2) Other acts of luring, abetting and helping others to infringe, the perpetrator and the infringer constitute the same infringement and bear joint and several liability.