I. Scope of protection of patent right
Since the invention is an intellectual achievement, the scope of protection can only be determined by the claims.
1, the scope of protection of the invention or utility model
The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the description and drawings can be used to illustrate the content of the claim.
△ "The content of the claim shall prevail" refers to the scope determined by the necessary technical features clearly recorded in the claim, and also includes the scope determined by the features equivalent to the necessary technical features.
△ "Equivalent features" refers to the features that basically achieve the same functions and effects by basically the same means as the recorded technical features, and can be associated by ordinary technicians in the field without creative labor.
2, the scope of protection of the patent right of design
The protection scope of the patent right of design shall be subject to the design of the product shown in the picture or photograph, and the brief description can be used to explain the design of the product shown in the picture or photograph.
The protection scope of design patent right is limited by product category, that is, only similar products belong to the protection scope of design. Example (Volume 08, Three Orders, 24)
Second, the concept of patent infringement
1, concept
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.
2. Features:
(1) The object of infringement is a valid patent.
(2) There must be infringement, that is, the actor objectively carried out the act of infringing others' patents.
(three) for the purpose of production and operation. The implementation of non-production and business purposes does not constitute infringement.
(4) It violates the law, that is, there is no legal basis for the actor to exploit the patent without the permission of the patentee.
Third, the types of patent infringement.
1, the form of direct infringement. This refers to the act of infringing others' patent rights directly implemented by the actor.
(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 and utility models;
(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. , including:
A. The non-patentee manufactures, uses, sells or promises to sell non-patented products for the purpose of production and operation without the permission of the patentee, and marks the patent mark and patent number of others without authorization.
B. Misleading others by using others' patent numbers in advertisements without authorization.
C misleading others by using the patent number of others without authorization in the contract.
D. Forging or altering other people's patent certificates, patent documents or patent application documents.
2. Indirect infringement of patent right
The so-called indirect infringement of patent right means that the actor's own behavior does not directly constitute infringement of patent right, but he lures, encourages, abets and helps others to infringe patent right. Mainly includes the following two kinds:
(1) selling parts and components of patented products, molds specially used for implementing patented products or machinery and equipment used for implementing patented methods.
(2) Transferring the patented technology to others 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 the same infringement and shall bear joint liability.
(3) Other acts of luring, abetting and helping others to infringe upon their rights constitute the same tort as the infringer and bear joint and several liability.
Third, the civil liability for patent infringement.
1, stop the infringement
2. Compensation for damages:
(1) If the actual loss can be proved, the actual loss shall prevail.
(2) If the actual loss cannot be proved, the interests obtained by the infringer shall prevail.
(3) If the above two points cannot be proved, the court will have the discretion to refer to the patent implementation fee.
(4) Where damages are claimed in accordance with the first two cases, the amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
3. Limitation of patent litigation.
The limitation of action for infringement of intellectual property rights is 2 years, counting from the date when the obligee knows or should know. If the patentee brings a lawsuit for more than 2 years and the patent right is still within the protection period, the people's court shall order the defendant to stop the infringement. The amount of compensation for infringement damages shall be calculated for two years from the date when the obligee brings a suit in a people's court.
Example: Zhang applied for the patent right on June 5438+0, 2002, and Zhao manufactured the patented product from March 1 2003 without his permission. Zhang didn't sue until June 65438+February 2006 1 day, demanding that Zhao stop the infringement and compensate him for the losses since March 65438, 2003. Can you get the support of the court?
A: I can get support. As for the claim for damages, the court can only support the damages from June 65438+February 1 2004 to the present two years, and the damages before this date are not supported because the statute of limitations has expired.
4. Temporary measures that the obligee can take before bringing an infringement lawsuit. Article 6 1 of the patent law.
The provisions of Articles 93-96 and 99 of the Civil Procedure Law:
(1) You can ask the court to order the infringement to stop before litigation, which is called pre-litigation injunction. In the civil procedure law, it is called pre-litigation behavior preservation or pre-execution.
(2) You can apply for pre-litigation property preservation.
(3) evidence preservation before litigation.
(4) The provisions of the relevant parts of the Civil Procedure Law shall apply to the pre-litigation property preservation and pre-litigation evidence preservation.