What are the defenses of patent infringement?

(1) defense of patent validity 1. If the accused infringer defends that the patent has exceeded the protection period, has been abandoned by the patentee, or has been declared invalid by the effective legal document, it shall provide corresponding evidence. 2. In a patent infringement lawsuit, if the accused infringer argues that the patent does not meet the conditions for patent authorization and should be declared invalid, his request for invalidation shall be submitted to the Patent Reexamination Board. (two) the defense of patent abuse. If the accused infringer defends against the patentee's malicious acquisition and abuse of the patent right, it shall provide corresponding evidence. In patent infringement litigation, if the patent right is declared invalid, it should not be easily identified as abuse of the patent right. 4. Malicious acquisition of a patent right refers to an invention-creation that is knowingly not protected by a patent, which is deliberately obtained by circumventing the law or by improper means, with the purpose of obtaining illegitimate interests or preventing others from legally implementing it. The following situations can be considered as malicious: (1) Apply for a patent for technical standards such as national standards and industry standards that existed before the filing date and obtain a patent right; (2) Apply for a patent for a product that is known to be widely manufactured or used in a certain field and obtain a patent right. (3) Non-infringement defense 5. Compared with all the technical features recorded in the claims, the technical features of the technical scheme accused of infringement lack the technical features recorded in one or more claims, which does not constitute patent infringement. 6. Compared with the corresponding technical features in the claim, one or more technical features of the alleged infringing technical scheme are neither the same nor the same, which does not constitute patent infringement. The term "different technical features" as mentioned in the first paragraph of this article means: (1) This technical feature makes the technical scheme accused of infringement constitute a new technical scheme; (2) The technical features are obviously superior to the corresponding technical features in the claims in terms of functions and effects, and ordinary technicians in the technical field think that the change is a substantial improvement, but it is not obvious. 7. The alleged infringing technical scheme omits the individual technical features in the claim or replaces the corresponding technical features in the claim with simple or low-level technical features, giving up or significantly reducing the performance and effect corresponding to the technical features in the claim, thus forming a deteriorated technical scheme, which does not constitute patent infringement. 8. Any unit or individual that manufactures, uses or imports patented products for non-production and business purposes does not constitute patent infringement. (IV) The defense of not being regarded as infringement. Where the patentee or a unit or individual licensed by him sells a patented product or a product directly obtained according to the patented method, it shall not be regarded as infringement of the patent right, including: (1) after the patentee or his licensee sells his patented product or the product directly obtained according to the patented method, the purchaser uses it and promises it in China. (2) After the patentee or his licensee sells his patented product or the product directly obtained according to the patented method outside China, the buyer imports the product into China, and then uses, promises to sell and sells the product in China; (3) The patentee or its licensee uses, promises to sell, sells or assembles a specific part of its patented product to manufacture the patented product; (4) The patentee of a method patent or its licensee sells the equipment specially used for implementing the patented method, and then uses the equipment to implement the method patent. 10. A person who has manufactured the same product, used the same method or made necessary preparations for manufacturing and using it before the patent application date, and continues to manufacture and use it only within the original scope, shall not be regarded as infringing the patent right. Using, promising to sell or selling patented products manufactured under the above circumstances or products directly obtained according to patented methods shall not be regarded as infringement of patent rights. 1 1. The conditions for the right of first use are: (1) Make necessary preparations for manufacture and use. That is, the main technical drawings or process documents necessary for the implementation of the invention and creation have been completed, or the main equipment or raw materials necessary for the implementation of the invention and creation have been manufactured or purchased. (2) continue to manufacture and use only within the original scope. "Original scope" includes: the existing production scale before the patent application date and the production scale that can be achieved by using existing production equipment or according to existing production preparation. Manufacture and use beyond the original scope constitutes infringement of patent rights. (3) The method or design of a previously manufactured product or a previously used product shall be independently researched by the first user or obtained by legal means from the patentee or other independent researchers, and it was not obtained by plagiarism or other improper means before the patent application date. If the accused infringer claims preemption by illegally obtained technology or design, it will not be supported. (4) The prior obligee may not transfer the technology it has implemented, except that it is transferred together with its affiliated enterprises. That is, after the patent application, the first user transfers or licenses others to implement the technology or design that has been implemented or made necessary preparations for implementation. If the accused infringer claims that the implementation belongs to the original scope, it will not be supported, except that the technology or design is transferred or inherited with the original enterprise. 12. The temporary passage of foreign means of transport through the territory, territorial sea and airspace of China shall not be regarded as infringement of patent rights 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. However, temporary transit does not include the "transshipment" of patented products by means of transport, that is, the transfer from one means of transport to another. 13. The exclusive use of relevant patents for scientific research and experiments shall not be regarded as patent infringement. For scientific research and experiment, it refers to the scientific research and experiment specifically aimed at the patented technology scheme itself. We should distinguish between the scientific research and experiment of the patented technology scheme itself and the application of the patented technology scheme in scientific research and experiment: (1) The scientific research and experiment of the patented technology scheme itself aims to study, verify and improve other people's patented technologies and produce new technological achievements on the basis of existing patented technologies. (2) The purpose of using patented technology scheme in the process of scientific research and experiment is not to study and improve other people's patented technology, but to study and experiment other technologies by means of patented technology scheme, or to study the commercial prospect of implementing patented technology scheme, and the result is not directly related to patented technology. This behavior constitutes an infringement of patent rights. The use of related patents mentioned in the first paragraph of this article includes the behavior of research experimenters in manufacturing, using or importing related patented products or using patented methods, and the behavior of others in manufacturing or importing related patented products for research experimenters. 14. For the purpose of providing information required for administrative examination and approval, manufacturing, using or importing patented drugs or patented medical devices, or manufacturing or importing patented drugs or patented medical devices exclusively for them, shall not be regarded as infringement of patent rights. The information required for administrative examination and approval refers to the experimental data, research reports, scientific and technological documents and other relevant information stipulated in the Drug Administration Law of People's Republic of China (PRC), the Regulations for the Implementation of the Drug Administration Law of People's Republic of China (PRC) and the Measures for the Administration of Drug Registration. (5) Defense of existing technology and defense of existing design 15. The prior art defense means that all the technical features accused of falling into the scope of patent protection are the same as or equivalent to the corresponding technical features in the existing technical scheme, or ordinary technicians in this technical field think that the technical scheme accused of infringement is a simple combination of the existing technology and common sense in this field, so it should be considered that the technology implemented by the accused infringer belongs to the existing technology, and the behavior of the accused infringer does not constitute patent infringement. 16. Existing technology refers to the technology known to the public at home and abroad before the patent application date. For the patent rights applied for and authorized according to the provisions of the Patent Law before the implementation of the revised Patent Law in 2008, the existing technology is determined according to the provisions of the original Patent Law. 17. The conflicting application does not belong to the prior art and cannot be used as the defense of the prior art. However, if the accused infringer claims that it implements a patent that conflicts with the application, you can refer to the provisions on the defense of the prior art in Article 125 of this Guide. Conflict application refers to a patent application filed by any unit or individual with the patent administration department of the State Council before the filing date, and the invention-creation recorded in the patent application documents published or announced by the applicant after the filing date is the same. 18. The defense of existing design means that the design of the accused infringing product is the same as or similar to the existing design, or the design of the accused infringing product is a simple combination of the existing design and the usual design of the product, then the design of the accused infringing product constitutes the existing design, and the behavior of the accused infringer does not constitute infringement of the design patent right. 19. Existing designs refer to designs known to the public at home and abroad before the filing date, including those made public in the form of publications and used at home and abroad. However, for the design patents that have been applied for and authorized in accordance with the provisions of the Patent Law before the implementation of the revised Patent Law in 2008, the existing designs shall be identified in accordance with the provisions of the original Patent Law. 20. If the accused infringer defends the implementation of the existing design, he shall claim it in the infringement lawsuit and provide relevant evidence of the existing design. 2 1. If the accused infringer defends by implementing the existing design, it shall judge whether the appearance design of the accused infringing product is the same as or similar to the existing design, instead of comparing the patented appearance design with the existing design. If the accused infringer claims that he is implementing a conflicting patent application for design, he should compare the accused infringing design with the conflicting application. If the alleged infringing design is the same as or similar to the conflicting application, the behavior of the accused infringer does not constitute infringement of the patent right of the design. (6) reasonable source defense 23. For the purpose of production and operation, it is an act of patent infringement to use, promise to sell or sell patented products that are not known to be manufactured or sold without the permission of the patentee or products directly obtained by patented methods. Users or sellers who can prove the legal source of their products shall not be liable for compensation, but shall be liable for stopping the infringement. Legal source means that users or sellers have purchased the accused infringing products at reasonable prices from legal purchase channels and provided relevant bills.