Patent infringement refers to the act of exploiting another person's patent for profit without the permission of the patentee and legal basis within the validity period of the patent right. It has the following characteristics: 1. The infringed object is a valid patent. Patent infringement must be based on the existence of a valid patent. The technology before patent authorization, the patent that has been declared invalid, abandoned by the patentee or the technology whose patent term expires does not constitute infringement. The patent law provides for a temporary protection system. After the publication of an application for a patent for invention, the user of the invention shall pay an appropriate royalty before being granted a patent right. In the case of a dispute over the use of an invention without paying an appropriate fee before the patent right is granted after the publication of an application for a patent for invention, the patentee shall request the administrative department for patent affairs to mediate after the patent right is granted, or directly bring a suit in a people's court. 2. There must be infringement, that is, the actor objectively carried out the act of infringing others' patents. 3. For the purpose of production and operation. The implementation of non-production and business purposes does not constitute infringement. It violates the law, that is, the actor's act of implementing the patent has no legal basis without the permission of the patentee. The manifestations of patent infringement can be divided into direct infringement and indirect infringement. 1. Direct infringement. This refers to the act of infringing others' patent rights directly implemented by the actor. 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. 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.
Legal objectivity:
Patent right is the exclusive right of the patentee to use his invention and creation, and patent infringement refers to the illegal act of implementing a valid patent protected by law for the purpose of production and operation without the permission of the patentee. The third revised draft of China Patent Law (draft for review) has been submitted to the State Council for deliberation, and "protection of patent right" is a main content put forward by China National Intellectual Property Administration. With the rapid growth of patent applications, there has also been a problem that can not be ignored, that is, patent infringement disputes are increasing substantially. The following is a detailed description of the relevant information and regulations of patent infringement: 1, the main type of patent infringement: 1, the act of manufacturing patented products without permission; 2. Intentionally using the patented product of invention or utility model; 3. Selling or promising to sell patented products without permission; 4. Use patented methods and use, sell or promise to sell products directly obtained according to patented methods; 5. The act of importing patented products or products directly obtained by patented methods; 6. The act of counterfeiting others' patents; 7. The act of counterfeiting patents. 2. Manifestations of patent infringement: Patent infringement can be divided into direct infringement and indirect infringement. Direct infringement. This refers to the act of infringing others' patent rights directly implemented by the actor. Its manifestations include: the act of manufacturing patented products of inventions, utility models and designs; The act of using patented products of inventions and utility models; The act of promising to sell patented products of inventions and utility models; The act of selling patented products of inventions, utility models or designs; The act of importing patented products of inventions, utility models and designs; Use patented methods and use, promise to sell, sell or import products directly obtained according to patented methods; 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. Indirect infringement usually creates conditions for direct infringement, and the common manifestations are: the actor sells parts of patented products, molds specially used for implementing patented products or machinery and equipment used for implementing patented methods; An act in which an actor transfers his patented technology without the authorization or entrustment of the patentee. 3. Forms of patent infringement: According to the current patent law, the specific forms of patent infringement can be divided into: (1) carrying out the patent behavior of others without permission. This kind of patent infringement must meet two conditions: without the permission of the right holder, for the purpose of production and operation. According to the provisions of Article 11 of the Patent Law, it includes the following three specific forms: manufacturing, using, promising to sell, selling or importing patented products invented or utility models by others; Using other people's patented methods and using, promising to sell, selling or importing products directly obtained according to this method; Manufacturing, selling or importing patented products of other people's designs. (2) the act of counterfeiting others' patents. This kind of patent infringement refers to the infringement of the trademark right of the patentee. According to Article 84 of the Detailed Rules for the Implementation of the Patent Law (200 1), it includes the following four specific forms: without permission, marking the patent number of others on the products manufactured or sold by it; Using other people's patent numbers in advertisements or other promotional materials without permission, causing people to mistake the technology involved for other people's patented technology; 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; Forging or altering other people's patent certificates, patent documents or patent application documents. (3) passing off non-patented products as patented products and passing off non-patented methods as patented methods. According to the provisions of Article 59 of the Patent Law, such acts need to bear general civil tort liability, and the administrative department for patent affairs shall order them to make corrections and punish them fairly. (4) In addition to the clear provisions of the law, there are two kinds of infringement in theory and practice: negligent counterfeiting, that is, the actor intentionally pretends to be a patent and randomly invents a patent number, which is exactly the same as the patent number obtained by someone. In this case, even if there is no intention of counterfeiting, the result of its behavior still constitutes counterfeiting others' patents. Reverse counterfeiting, that is to say, the actor sells the patented products legally obtained by others with his own patent number, is obviously not enough to constitute "counterfeiting others' patents", but it actually violates the marking right of the legitimate patentee, which is still an infringement, and the infringer should bear civil liability. 4. Principle of Liability for Patent Infringement According to the second paragraph of Article 63 of the Patent Law, the seller or user can only be exempted from liability for compensation if the source is unknown and legal, but if it still constitutes infringement, it shall bear the responsibility of stopping the infringement and eliminating the influence. That is to say, for bona fide sellers or users, the principle of no-fault liability should be applied to stop the infringement and eliminate the influence, and the principle of fault liability should be applied to compensate. However, the application scope of this mixed principle cannot be extended to the act of manufacturing or importing patented products. Fault is not a constituent element of patent infringement. When determining the tort liability of the actor, we should apply the no-fault liability to stop the tort liability, and apply the fault liability and the no-fault liability to compensate the losses according to different occasions. Different imputation principles can be applied to the same patent infringement to determine different civil liabilities, which should be said to be more reasonable than the traditional theory. 5. Constitutive elements of patent infringement Generally speaking, the constitutive elements of civil tort liability usually include four aspects: illegal behavior, damage result, causal relationship between illegal behavior and damage result, and subjective fault of the actor. For the tort liability of patent behavior, its constitutive requirements mainly include the following aspects: (1) The object of infringement should be the valid patent with patent right in China. First of all, in view of the regional nature of patent rights, valid patents generally refer to patents authorized by China National Intellectual Property Administration. Secondly, in view of the timeliness of the patent right, only within the specified protection period, the patent right that has not expired due to payment, invalidity, abandonment and other reasons is a valid patent. It should be noted that if a patent right is declared invalid for some reason, it is regarded as nonexistent from the beginning, so even if someone else has implemented it before, it is not patent infringement. (2) there are illegal acts. That is, the actor has the behavior of exploiting the patent for profit without the permission of the patentee. It should be noted that Article 63 of the Patent Law stipulates five acts that are not regarded as infringement, which is an exception to the patent tort liability. If the actor can't provide evidence as a defense, it shall be deemed to constitute patent infringement and bear the responsibility according to law. (3) The actor is subjectively at fault. The subjective fault of the infringer includes intention and negligence. Intention means that the actor knows that his behavior is an act of infringing others' patent rights and implements it; The so-called negligence refers to the behavior that the actor infringes the patent right of others because of 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 subjectively innocent, it also constitutes patent infringement, but it is not liable for compensation. (four) should be for the purpose of production and operation. Article 11 of the Patent Law stipulates that after an invention-creation is granted a patent right, no one may exploit the patent unless otherwise provided for in this Law, and the exploitation shall not be for the purpose of production and operation. Therefore, the purpose of production and operation should also be one of the constitutive requirements for judging patent infringement. 6. Legal Consequences of Patent Infringement When the patent right is infringed, both the patentee and the interested party may request the patent management authority to handle it, or they may bring a lawsuit to the court and handle it through judicial procedures. Among them, the administrative procedure is not final, and if the parties are not satisfied with the administrative treatment, they can still bring a lawsuit to the people's court. (1) Civil sanctions for infringement. Patent law mainly adopts civil sanctions for patent infringement? Flow chart of patent infringement dispute mediation or when the people's court handles infringement? Mainly to order the infringer to stop the infringement and compensate for the losses. According to the relevant provisions of the General Principles of Civil Law: "If the patent right is infringed for the purpose of production and operation without permission, the patentee or interested party may request to stop the infringement." Regarding the amount of compensation for patent infringement, Article 60 of the Patent Law stipulates: "The amount of compensation for patent infringement shall be determined according to the losses suffered by the obligee or the interests gained by the infringer due to infringement; If it is difficult to determine the loss of the infringer or the interests of the infringer, it shall be reasonably determined with reference to the multiple of the patent license fee. "Articles 20 and 21 of the Supreme People's Court's Several Provisions on the Applicable Law in the Trial of Patent Dispute Cases have also made relevant provisions. In addition, the patentee can not only claim compensation for economic losses, but also take measures to restore the patentee's business reputation. (2) Administrative sanctions against infringement. The patent law stipulates administrative responsibilities for acts such as counterfeiting other people's patents, revealing state secrets, and engaging in malpractices for personal gain. In addition, Articles 58 and 59 of China's Patent Law also stipulate administrative liability for acts that infringe upon the legitimate rights and interests of inventors or designers. (3) Criminal sanctions for infringement. According to patent law? Patent infringement mainly gives civil sanctions? But sometimes criminal sanctions are needed. Article 58 of the Patent Law clearly stipulates: "If a crime is constituted, criminal responsibility shall be investigated according to law". In a word, patent infringement is a serious violation of the legitimate rights and interests of the patentee, and the infringer should bear corresponding responsibilities according to law. However, at present, the general public's awareness of patent protection is weak, and the patent administration authorities are also weak in dealing with patent infringement disputes, investigating patent violations and investigating and collecting evidence. Lu Yongxiang, vice chairman of the National People's Congress Standing Committee (NPCSC), clearly pointed out in his report: "To solve these problems, we must strengthen patent administrative protection according to law and give full play to the advantages of simple, fast and efficient patent administrative law enforcement." We have reason to believe that the third revision of the patent law will further improve China's intellectual property legal system, effectively curb patent infringement, and make China's patent system develop on a healthier track through continuous improvement of patent administrative law enforcement.