According to the law, a person who has manufactured the same product, used the same method or made necessary preparations for manufacturing and using the product 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. However, in patent infringement litigation, if the evidence is not enough to prove that the enterprise has produced and sold the same product before others apply for a patent, then the production and sales behavior of the enterprise infringes the patent right of others.
Acquisition process of application for patent for appearance
1. Search the patent you need to apply for online first, mainly to search whether the patent is novel, whether it has been applied for, or whether similar patented products have appeared. The same design is mainly to avoid wasting time when repeated applications are rejected;
2. Prepare the materials necessary to apply for a patent. First, the number of pictures of the product applying for a patent and the relevant shooting angles should be comprehensive and clear, and the places that need to be stated and explained in particular should be distinctive; Secondly, the applicant's relevant identity information, such as a copy of ID card. If it is an enterprise, you need to submit the business license and legal person identity certificate of the enterprise. If it is necessary to entrust others to handle related matters, materials such as power of attorney shall be submitted;
3. After receiving the above materials, the patent application department will first conduct a formal review, such as whether the above materials are complete, whether it can clearly indicate the identity information of the applicant, and whether it meets the basic conditions for applying for a patent for design. If there is no need to make corrections, the relevant staff will contact the applicant to make corrections, or directly issue a notice of correction; If the above materials are complete, we will enter the substantive examination procedure to find out whether the patent meets the criteria for applying for design and whether there are duplicate applications. At the same time, if the applicant needs to supplement the patent, we will also contact the applicant for reply or supplement.
4. After being examined by the staff of the Patent Office, the application meets the requirements for applying for a patent, and the auditor will issue a notice of authorization, which does not mean that the patent has been authorized, but only means that the patent authorization has passed the examination, and the applicant needs to fulfill the payment responsibility. The general authorization notice will record the fees to be paid, and the payment of the above fees will be accompanied by a certain period of time. If it is not paid on time during this period, then according to the regulations, the applicant's patent application is deemed to have been withdrawn and the above behavior needs to be re-conducted;
5. After fulfilling the above obligations, the applicant will apply for the authorization certificate according to the relevant instructions of the Patent Office. Generally, it is necessary to submit relevant credentials for payment. Finally, the patentee obtains the patent ownership certificate according to the process. The general patent application fee is not paid at one time, and there will be an annual fee. If the annual fee is not paid on time, the patent right will be restricted.
legal ground
patent law of the people's republic of china
Article 75 Any of the following circumstances shall not be regarded as infringement of the patent right:
(1) The patentee or a unit or individual licensed by the patentee uses, promises to sell, sells or imports its patented products or products directly obtained by patented methods;
(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;
(5) manufacturing, using or importing patented drugs or patented medical devices for the purpose of providing information required for administrative examination and approval, or manufacturing or importing patented drugs or patented medical devices exclusively for them.