The restrictions on patent rights mainly include the following aspects:
(1) is not regarded as patent infringement.
According to the provisions of Article 63 of the Patent Law amended at the 9th the NPC Standing Committee Meeting17+07th on August 25th, 2000, the following acts do not constitute infringement:
1. After the patented product manufactured or imported by the patentee or the product directly obtained by the patented method is sold, the patentee uses, promises to sell or sells the product.
2. Having manufactured the same product, used the same method or made necessary preparations for 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 territory, territorial sea and airspace use the relevant patents in their devices and equipment for their own purposes according to the agreement signed between their countries and China or the international treaties to which * * * is a party, or according to the principle of reciprocity.
4. Related patents used exclusively for scientific research and experiments. If the use or sale of a patented product that is not known to be manufactured or sold without the permission of the patentee or a product directly obtained by a patented method is used for production and business purposes, it shall not be liable for compensation if it can prove the legal source of the product.
(2) Compulsory license for patent exploitation
Compulsory license refers to the measures that the patent administrative department of the State Council allows the applicant to exploit the patent without the consent of the patentee according to the application of the unit or individual. Compulsory licensing measures are a kind of restriction on the patentee's abuse of rights. China's patent laws and regulations stipulate three kinds of compulsory licenses:
1, Article 48 of the Patent Law stipulates: "Where a unit with implementation conditions requests the patentee of an invention or utility model to exploit its patent under reasonable conditions and fails to obtain the license within a reasonable time, the patent administration department of the State Council may grant a compulsory license to exploit the invention patent or utility model upon the application of the unit." To approve this compulsory license, the following conditions must be met: first, the request for compulsory license for patent exploitation must be made three years after the patent right is granted; Second, the object of applying for compulsory license can only be the invention or utility model patent, but not the design patent; Third, the unit that made the request for compulsory license has already met the implementation conditions; Fourth, the unit requesting compulsory license must issue a certificate that it failed to sign a license contract with the patentee on reasonable terms within a reasonable time.
2. In case of national emergency or special circumstances, or for the purpose of public interest, the administrative department for patent in the State Council may grant a compulsory license to exploit the patent for invention or utility model.
3. According to Article 50 of the Patent Law, if the patented invention or utility model is of great economic significance, and its implementation depends on the implementation of the previous invention or utility model, the patent administration department in the State Council may, upon the application of the latter patentee, grant a compulsory license to exploit the previous invention or utility model. Where a compulsory license is granted in accordance with the above provisions, the administrative department for patent in the State Council may also grant a compulsory license to exploit the latter invention or utility model upon the application of the former patentee.
For the above three kinds of compulsory licenses, the applicant shall prove that he has not signed a license contract with the patentee on reasonable terms.
The decision made by the patent administrative department of the State Council to grant compulsory license shall be notified to the patentee in time, and shall be registered and announced; According to the reasons of compulsory license, the scope and time of implementation are stipulated. When the reasons for compulsory license are eliminated and no longer occur, the decision to terminate the compulsory license shall be made at the request of the patentee after examination. Units or individuals that have obtained the compulsory license for implementation do not enjoy the exclusive right of implementation, nor have the right to allow others to implement it.
With regard to the royalty of compulsory license, Article 54 of the Patent Law stipulates: "A unit or individual that has obtained a compulsory license shall pay a reasonable royalty to the patentee, the amount of which shall be determined by both parties; If the two parties cannot reach an agreement, it shall be decided by the patent administration department of the State Council. "