The protection scope of the patent right of design shall be subject to the design of the product shown in the picture or photograph, and the brief description can be used to explain the design of the product shown in the picture or photograph.
Article 60 Where a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, the parties concerned shall settle it through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).
Article 61 Where a patent infringement dispute involves an invention patent of a new product manufacturing method, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method.
Where a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the administrative department for patent affairs may require the patentee or interested party to issue a patent evaluation report made by the patent administrative department of the State Council after searching, analyzing and evaluating the relevant utility model or design as evidence for hearing and handling the patent infringement dispute.
Article 62 In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement.
Article 63 Anyone who counterfeits a patent shall bear civil liability according to law, and the administrative department for patent affairs shall order him to make corrections and make a public announcement, confiscate his illegal income, and may concurrently impose a fine of less than four times his illegal income; If there is no illegal income, a fine of less than 200,000 yuan may be imposed; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 64 When the administrative department for patent affairs investigates and deals with the suspected patent counterfeiting according to the obtained evidence, it may request the relevant parties to investigate the situation related to the suspected illegal act; On-site inspection of the places where the parties are suspected of illegal acts; Consult and copy contracts, invoices, account books and other relevant materials related to suspected illegal acts; Inspect products related to suspected illegal acts, and seal up or detain products that are proved to be counterfeit patents.
When the patent administration department exercises the functions and powers prescribed in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct.
Article 65 The amount of compensation for patent infringement shall be determined according to the actual losses suffered by the obligee due to the infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the compensation of more than 1 10,000 yuan and less than1100,000 yuan according to the type of patent right, the nature and circumstances of the infringement.
Article 66 Where the patentee or interested party has evidence to prove that others are committing or about to commit patent infringement, and their legitimate rights and interests will be irretrievably damaged if they are not stopped in time, they may apply to the people's court to take measures to order them to stop the relevant acts before bringing a lawsuit.
When applying, the applicant shall provide a guarantee; If no guarantee is provided, the application shall be rejected.
The people's court shall make a ruling within 48 hours from the date of accepting the application; If there are special circumstances that need to be extended, it can be extended for forty-eight hours. If an order is made to stop the relevant acts, it shall be executed immediately. If a party refuses to accept the ruling, it may apply for reconsideration once; The execution of the award shall not be suspended during the reconsideration period.
If the applicant fails to bring a suit within 15 days from the date when the people's court takes the measures ordered to stop the relevant acts, the people's court shall lift the measures.
If the application is wrong, the applicant shall compensate the respondent for the losses suffered by stopping the relevant behavior.
Article 67 In order to stop the infringement of patent right, the patentee or interested party may apply to the people's court for evidence preservation in case the evidence may be lost before prosecution or difficult to obtain later.
When the people's court takes preservation measures, it may order the applicant to provide a guarantee; If the applicant fails to provide a guarantee, the application shall be rejected.
The people's court shall make a ruling within 48 hours from the date of accepting the application; If it is ordered to take protective measures, it shall be executed immediately.
If the applicant does not bring a suit within 15 days from the date when the people's court takes protective measures, the people's court shall lift the protective measures.
Article 68 The limitation of action for patent infringement is two years, counting from the date when the patentee or interested party knows or should know about the infringement.
If the patentee fails to pay the appropriate royalty before the patent right is granted after the publication of the application for a patent for invention, the limitation period for requesting the royalty is two years, counting from the date when the patentee knows or should know that others are using his invention. However, if the patentee knows or should know before the patent right is granted, it shall be counted from the date when the patent right is granted.
Article 69 Any of the following circumstances shall not be regarded as infringement of the patent right:
(1) The patentee or a unit or individual licensed by the patentee uses, promises to sell, sells or imports its patented products or products directly obtained by patented methods;
(2) Having manufactured the same product, used the same method or made necessary preparations for its 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 territorial waters and airspace use the relevant patents in their devices and equipment for their own needs in accordance with the agreements signed between their countries and China or international treaties to which they are both parties, or on the principle of reciprocity;
(four) the use of relevant patents for scientific research and experiments;
(5) manufacturing, using or importing patented drugs or patented medical devices for the purpose of providing information required for administrative examination and approval, or manufacturing or importing patented drugs or patented medical devices exclusively for them.
Article 70 Anyone who uses, promises to sell or sells an infringing patented product for the purpose of production and operation without knowing that it was manufactured and sold without the permission of the patentee shall not be liable for compensation if he can prove the legal source of the product.
Article 71 Whoever, in violation of the provisions of Article 20 of this Law, applies for a patent in a foreign country and divulges state secrets shall be given administrative sanctions by his unit or the competent authority at a higher level; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 72 Whoever infringes on the inventor's or designer's right to apply for a patent for non-service invention-creation and other rights and interests as stipulated in this Law shall be given administrative sanctions by his unit or the competent authority at a higher level.
Article 73 The department in charge of patent work shall not participate in business activities such as recommending patented products to the society.
Where the administrative department for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or supervisory organ to make corrections, eliminate the influence and confiscate the illegal income; If the circumstances are serious, the directly responsible person in charge and other directly responsible personnel shall be given administrative sanctions according to law.
Article 74. State functionaries engaged in patent management and other relevant state functionaries who neglect their duties, abuse their powers or engage in malpractices for selfish ends, which constitutes a crime, shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be given administrative sanctions according to law. 2. Detailed Rules for the Implementation of the Patent Law Adopted at the 95th executive meeting of the State Council on February 30, 2009 Article 79 The departments for the administration of patent work mentioned in the Patent Law and these Detailed Rules refer to the departments for the administration of patent work established by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and the people's governments of cities divided into districts with heavy workload in patent management and strong practical handling capacity.
Article 80 The patent administration department in the State Council shall provide professional guidance to the patent administration department in handling patent infringement disputes, investigating and handling patent counterfeiting and mediating patent disputes.
Article 81 Where a party requests to handle a patent infringement dispute or mediate a patent dispute, it shall be under the jurisdiction of the administrative department for patent work where the respondent is located or where the infringement occurred.
Where more than two departments in charge of patent work have jurisdiction over patent disputes, the parties may make a request to one of the departments in charge of patent work; Where a party makes a request to two or more departments that have jurisdiction over patent work, it shall be under the jurisdiction of the department that accepts it first.
Where the department in charge of patent work disputes the jurisdiction, the department in charge of patent work of the people's government at a higher level shall designate the jurisdiction; Where there is no department for the administration of patent work under the people's government at a higher level, the administrative department for patent in the State Council shall designate the jurisdiction.
Article 82 In the course of handling a patent infringement dispute, if the respondent requests invalidation and is accepted by the Patent Reexamination Board, it may request the administrative department for patent affairs to suspend the handling.
Where the administrative department for patent affairs considers that the reason for suspension put forward by the respondent is obviously untenable, it may not suspend the processing.
Article 83 Where the patentee marks the patent mark on his patented product or the package of the product in accordance with Article 17 of the Patent Law, it shall mark it in the manner prescribed by the patent administration department of the State Council.
Where the patent mark does not conform to the provisions of the preceding paragraph, the administrative department for patent affairs shall order it to make corrections.
Article 84 The following acts are acts of counterfeiting patents as stipulated in Article 63 of the Patent Law:
(1) Marking a patent mark on a product or its packaging that has not been granted a patent right, and continuing to mark the patent mark on the product or its packaging after the patent right is declared invalid or terminated, or marking the patent number of others on the product or its packaging without permission;
(2) selling the products mentioned in item (1);
(3) calling a technology or design that has not been granted a patent right a patented technology or design, calling a patent application a patent, or using another person's patent number without permission, so that the public will mistake the technology or design involved for a patented technology or design;
(4) Forging or altering patent certificates, patent documents or patent application documents;
(five) other acts of confusing people and mistaking a technology or design that has not been granted a patent right for a patented technology or design.
Before the termination of the patent right, the patented product, the product directly obtained according to the patented method or its packaging is marked with a patent mark, and after the termination of the patent right, it is not an act of counterfeiting a patent.
If a product that is not known to be a counterfeit patent is sold, and the legal source of the product can be proved, the department in charge of patent affairs shall order it to stop selling, but it shall be exempted from the penalty of fine.
Article 85 Except as provided for in Article 60 of the Patent Law, the administrative department for patent affairs may, at the request of the parties concerned, mediate the following patent disputes:
(a) the right to apply for a patent and patent disputes;
(2) Disputes over the qualifications of inventors and designers;
(3) Disputes over the rewards and remuneration of the inventor or designer of the service invention-creation;
(4) Disputes over the use of an invention without paying an appropriate fee after the publication of the application for a patent for invention and before the patent right is granted;
(5) Other patent disputes.
Where a party requests the administrative department for patent affairs to mediate the dispute listed in Item (4) of the preceding paragraph, it shall do so after the patent right is granted.
Article 86 Where a party has a dispute over the right to apply for a patent or the ownership of a patent right and requests the administrative department for patent affairs to mediate or bring a suit in a people's court, it may request the patent administration department of the State Council to suspend the relevant procedures.
Anyone who requests to suspend the relevant procedures in accordance with the provisions of the preceding paragraph shall make a request to the patent administration department of the State Council, and attach a copy of the relevant acceptance documents indicating the application number or patent number.
After the conciliation statement made by the patent administration department or the judgment made by the people's court comes into effect, the parties concerned shall go through the formalities for resuming the relevant procedures with the patent administration department of the State Council. If the dispute over the right to apply for a patent or the ownership of the patent has not been resolved within 65,438+0 years from the date of requesting the suspension, and it is necessary to continue to suspend the relevant procedures, the requester shall request an extension of the suspension within this time limit. If no extension is requested at the expiration of the time limit, the patent administration department of the State Council shall resume the relevant procedures on its own.
Article 87 If the people's court decides to take preservation measures for the right to apply for a patent or the patent right in the trial of a civil case, the administrative department for patent in the State Council shall suspend the relevant procedures for the preserved right to apply for a patent or the patent right from the date of receiving the ruling indicating the application number or patent number and the notice of assistance in execution. If the people's court has not decided to continue to take preservation measures after the expiration of the preservation period, the patent administration department in the State Council will resume the relevant procedures on its own.
Article 88 The suspension of relevant procedures by the patent administration department of the State Council in accordance with the provisions of Articles 86 and 87 of these Rules refers to the suspension of the preliminary examination procedure, substantive examination procedure, reexamination procedure, patent grant procedure and patent invalidation procedure; Procedures for waiver, alteration or transfer of patent right or patent application right, procedures for pledge of patent right and suspension of procedures for termination before the expiration of patent right period. I hope it helps you.