(a) without permission to implement the patent act of others. 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. According to the second paragraph of Article 63 of the Patent Law, the seller or user can be exempted from the liability for compensation only if the source is "unknown" and "legal", but it still constitutes infringement and should 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. The constitutive requirements of general civil tort liability usually include four aspects: illegal act, damage result, causal relationship between illegal act 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 infringing object shall be a valid patent with a 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. 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? When the patent administration organ or the people's court handles the 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". (1) Non-infringement defense, the enterprise shall determine the scope of patent protection according to the contents of the patent claim, and find out the corresponding technical characteristics of the object suspected of infringement, so as to judge whether the products or methods it manufactures or sells infringe the patent right involved.
(2) the defense of known technology or the defense of "invalid request", if the infringement is established, it is necessary to further judge whether the technology used belongs to the known technology before the patent application date. Submit the Request for invalidation to the Patent Reexamination Board of the State Intellectual Property Office during the period of defense and proof.
(3) the right of first use defense, if the enterprise has made substantial special investment and completed the necessary technical preparation before the patent application date, it can continue to implement it within the original scope.
(4) the defense of repeated authorization. Where the patentee applies for both utility model and invention for the same invention-creation, it shall indicate whether it is a duplicate authorization. If it is a patent in this illegal state, it should not be protected by law. Guangdong Xingfa Innovation Co., Ltd. and Guangdong Xingfa Aluminum Profile Factory Co., Ltd. filed a lawsuit with Hangzhou Intermediate People's Court against Yiwu Fuyi Building Materials Co., Ltd. and Guangdong Lv Feng Aluminum Co., Ltd.
According to the original statement, the defendant Fuyi Company sold a large number of counterfeit products, which seriously harmed the plaintiff's interests. These products are all produced by Feng Aluminum Company, and both of them should bear tort liability.
Feng Aluminum Company argued that: 1, the plaintiff's patent should be invalid; 2. The aluminum profile products produced by our company are obviously different from the plaintiff's patented products, which does not constitute patent infringement.
Fuyi Company did not submit the defense.
The court held through trial that: 1, the patent obtained by the plaintiff through transfer is a valid patent; 2. The profile produced by Feng Aluminum Company belongs to the same category as the patented product, except for two slight differences, which are basically consistent with the visible parts of the profile product in cross section. This difference is not easy for the average consumer to distinguish. Therefore, Feng Aluminum Company's manufacture of the above-mentioned profiles and the company's sale of the above-mentioned profiles all constitute an infringement of the plaintiff's patent right. 3. The plaintiff has no evidence to prove that the company knowingly sells infringing products. According to the notarial certificate, it can be concluded that the infringing products sold by the company are produced by Feng Aluminum Company, and the company may not be liable for compensation.
The final judgment is as follows: Feng Aluminum Company immediately stopped producing and selling infringing products and destroyed the molds for manufacturing infringing products; Fuyi Company immediately stopped selling infringement profiles; Feng Aluminum Company compensated the plaintiff for the economic loss of 80,000 yuan.
After the first trial, Lv Feng Company refused to accept the appeal, and the Zhejiang Higher People's Court ruled that the appeal was dismissed and the original judgment was upheld. Suzhou Shengzhijin Aluminum Co., Ltd. appealed to the Beijing Higher People's Court because it refused to accept the administrative judgment of Beijing No.1 Intermediate People's Court on a series of design patents that were invalid in this case.
Hualian Company and other units and individuals applied to the Patent Reexamination Board in 2002 to declare the patent invalid, arguing that the patent did not conform to the provisions of Article 23 of the Patent Law. After examination, the Patent Reexamination Board, based on the facts ascertained by the Higher People's Court of a province, believes that a product can only have one model for a period of time, and rope gold company has sold the products of this model before the application date, and that this series of patented products have been publicly sold before the application date. In 2003, an invalid decision was made to declare the patent right of design invalid. Rope Gold Company refused to accept the decision and filed an administrative lawsuit with Beijing No.1 Intermediate People's Court. Beijing No.1 Intermediate People's Court upheld the decision of the Patent Reexamination Board.
In the trial of the second instance, the focus of controversy among Rope Gold Company, Patent Reexamination Board and Hualian Company is whether the products publicly sold before the patent application date must be patented products, that is, whether the product shape corresponding to this model can be uniquely determined as the shape of the design patent product in dispute in this case. Both the Patent Reexamination Board and the court of first instance merged this case with other 1 1 cases. During the trial, the Patent Reexamination Board also accepted the civil judgment of Zhejiang Higher People's Court submitted by Hualian Company after the oral hearing, but rejected all the evidence submitted by Yuan Man business department boss and Luo Zongtao in favor of Rope Gold Company.
The key to this case is whether to adopt the evidence submitted by Luo Zongtao, the boss of Yuan Man Sales Department, in favor of Luosheng Gold Company. If the Patent Reexamination Board finds that the evidence is scattered and undated, it will not be accepted; The court of first instance tried the above evidence, but did not adopt it. After trial, the court of second instance held that in the administrative proceedings after the procedure of examining the invalidation of the Patent Reexamination Board, the new evidence presented by the invalid claimant was not accepted and recognized in principle, and the invalid claimant could re-submit the request for invalidation to the Patent Reexamination Board based on the new evidence. However, after the patent right is declared invalid or invalid, the new evidence put forward by the patentee in the subsequent procedure that may lead to the revision of the case shall be accepted and recognized. At this point, the decision of the Patent Reexamination Board shall be revoked and ordered to be reexamined. The court of first instance refused to accept the above evidence, which not only violated the relevant provisions of the Review Guide, but also seriously damaged the legitimate rights and interests of the patentee and was obviously unfair to Ropes Gold Company. The court of second instance conducted a comprehensive review of the source, submission method, time of appearance, relationship with other evidence, interest relationship between the two parties, industry common sense and practice, and previous patent application experience of Rope Gold Company, and confirmed that the evidence was objective, true, legal and effective and should be adopted.
The final judgment revoked the administrative judgment of Beijing No.1 Intermediate People's Court (2004) No.42 of Beijing Bank of China Zi Chu Zi; Revoke an invalid decision. Patent Reexamination Board of State Intellectual Property Office 5531; "Special-shaped aluminum frame 8604" design patent right is valid.