Let's take an example to illustrate that if patent A has four innovations of ABCD and protects it, if you find that the products made by ABCD alone are not good enough, adding new innovations to form ABCDE and launch the products will still be infringed.
But if you find that innovation C in patent A is not important, you can use ABD to improve it, or change it to Abd. Then it does not constitute infringement. Infringement depends on whether the technology used in the product falls within the scope of the other party's claim, and has nothing to do with whether the other party sues.
Extended data:
The conditions for enjoying the right of first use are:
(1) has made 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.
(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 owner shall not transfer the technology previously implemented by him, unless the technology 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.
The exclusive use of relevant patents for scientific research and experiments shall not be regarded as infringement of patent rights.
For scientific research and experiment, it refers to the scientific research and experiment specifically aimed at the patented technology scheme itself, and its purpose is to study, verify and improve other people's patented technologies on the basis of existing patented technologies and produce new technological achievements.
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.
For the purpose of providing information needed 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.
References:
Baidu Encyclopedia-Principles for Determining Patent Infringement
References:
Baidu encyclopedia-patent infringement
References:
Beijing Higher People's Court-Guidelines for Determination of Patent Infringement (20 17)