How to judge whether the utility model patent constitutes infringement?

To judge whether the invention patent and utility model patent constitute infringement, the court basically adopts three-step method. That is, according to the provisions of Article 59 of the Patent Law, the scope of protection of the patent right for invention or utility model shall be subject to the contents of its claims. Therefore, the claim is the only basis for us to determine the scope of patent protection. According to the provisions of Article 21 of the Detailed Rules for the Implementation of the Patent Law, patent claims shall have independent claims or subordinate claims. The so-called independent claim refers to the technical scheme that reflects the invention or utility model as a whole and records the necessary technical features to realize the purpose of the invention or utility model. The independent claim is written before the dependent claim, and its structure consists of preface and features, which jointly define the scope of the invention or utility model. It can be expressed by the following formula: preface feature+characteristic feature = protection scope of patent right. The so-called dependent claim refers to the additional technical features of the claimed invention or utility model, which further limits the cited claim, and its main function is to protect the patent right from being declared invalid by the patentee. Therefore, the claims mentioned in the patent infringement judgment refer to independent claims, not subordinate claims. For the convenience of comparison, independent claims are usually decomposed into several relatively independent necessary technical features. This process is to interpret the claims. The legal documents to interpret the claims are the patent specification and attached drawings. Of course, patent documents are also important reference documents to explain claims. Two, determine the corresponding technical characteristics of the accused infringing products (including methods, the same below). That is, according to the necessary technical characteristics recorded in the claim, the technical characteristics of the accused infringing product are decomposed accordingly. Thirdly, compare the necessary technical features recorded in the decomposed claims with those of the accused infringing products one by one. The comparison results may be as follows: (1) The necessary technical features recorded in the claim are exactly the same as those of the alleged infringing products. That is, if the necessary technical features recorded in the claim are A, B and C, and the characteristics of the accused infringing product are also A, B and C, the relationship between them can be expressed as abc=abc, then we think that the protection scope of the patent right covers the accused infringing product comprehensively, or the accused infringing product completely falls into the protection scope of the patent right, and the patent infringement is established. The patent infringement in this case is a standard and out-and-out patent infringement, and some people call it literal infringement. (2) The features of the alleged infringing product exceed the necessary technical features recorded in the claim. That is, if the necessary technical features recorded in the claim are A, B and C, and the features of the accused infringing product are A, B, C and D, the relationship between them can be expressed as: ABCD >；; Abc, then we also think that patent infringement is established. At this point, the relationship between the accused infringing product and the patent is probably the relationship between the basic patent and the subordinate patent. The subordinate patentee's exploitation of the basic patent of the basic patentee without the permission of the basic patentee also constitutes patent infringement according to the provisions of the patent law. (3) The necessary technical features recorded in the claim are more than those of the accused infringing product. That is, if the necessary technical features recorded in the claim are A, B and C, and the features of the accused infringing product are A and B, the relationship between them can be expressed as ABC.