In our country, to judge patent infringement, we must first determine the scope of patent protection, and then judge whether the technical characteristics of the defendant's product or method belong to the scope of patent protection. According to the provisions of China's patent law, 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 explain the claim. The scope of protection of the design patent right shall be subject to the design product shown in the picture or photograph.
If the technical features of an enterprise's product or method are all the same as the contents of the patent claim, it belongs to its protection scope and constitutes infringement. In addition, the principle of equivalence and estoppel are also applicable to the determination of patent infringement in China.
After careful analysis, if you confirm that your product or method does not constitute infringement, you can reply accordingly; If you confirm that your product or method has fallen into the scope of patent protection, you can consider whether your implementation behavior belongs to the behavior that does not constitute a patent infringement clause in China's patent law. If you confirm that your product or method has constituted infringement, you can further analyze the validity of the patent. If you can declare the patent invalid, you can also win the patent infringement lawsuit.
Enterprises should entrust patent lawyers in China to carefully find out the legal status and patentability of patents. If you think it is possible to declare the patent invalid after analyzing the retrieval results, you should take the time to make a request to declare the patent invalid to the Reexamination Board of the Chinese Patent Office within the defense period. At the same time, a copy of the patent invalidation request will be submitted to the court, requesting the court to decide to suspend the lawsuit. For utility model patents and design patents, the court shall suspend the proceedings. The court may or may not suspend the invention patent. Therefore, the defendant should actively provide the court with materials to prove the lack of patentability of the patent, so as to urge the court to suspend the lawsuit. If the court does not suspend the trial and make an infringement judgment, the defendant shall appeal in time and request the Patent Reexamination Board to speed up the procedure, so as to make a decision to declare the patent invalid before the judgment of the second instance of the court is made.
If the patent right cannot be declared invalid, the enterprise does infringe the patent right. It is suggested that the enterprise stop the infringement in time and actively strive to reach a settlement agreement with the obligee.
Legal basis: After the patent right for inventions and utility models is granted in Article 11 of the Patent Law of People's Republic of China (PRC), no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, use or sell its patented products or use its patented methods for production and business purposes, except in the circumstances specified in Article 14 of this Law.
After the design patent is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, may not manufacture or sell its patented products for production and business purposes.