The termination of a patent by others does not constitute infringement. According to relevant laws and regulations, the patent right comes into being from the date when the patent administrative department of the State Council issues the patent certificate, and ends when the patentee voluntarily gives up or fails to pay the free fee within the time limit. Therefore, after the expiration of Tanabata, the patent right is extinguished, and anyone can freely exploit the patent, which will not constitute infringement.
Legal objectivity:
Article 56 of the Patent Law stipulates that the scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs. In practice, when judging that the patent right of design is infringed, it is necessary to meet the requirements that the appearance of the accused infringing product is the same as or similar to the protected design. It seems to be a complicated problem to judge whether the appearance of the accused infringing product is the same or similar to that of the protected product. In many cases, different examiners, agents, parties and judges will have different opinions on whether the appearance of the same group of objects is the same or similar, and the disagreement between the Patent Reexamination Board and the court often occurs. In the case that the judge's subjective factors play a great role, the correct application of basic rules in the judgment process is an important basis for judging whether the conclusion is convincing. The same design refers to the design used by the accused infringing product on the same product as the patented product, which is visually indistinguishable from the design of the patented product. If the accused infringing product is exactly the same as the patented product of design, it will definitely fall within the scope of patent protection. However, generally speaking, it rarely happens that the products being compared are exactly the same as those being compared. More often, infringing products constitute an approximation of authorized design. Approximate design refers to the design similar to the appearance design of patented products used by accused infringing products on the same or similar products. It is difficult to judge the general design. According to the review guide and practice, the general judgment procedure follows the order from overall comparison to major comparison. The first is overall comparison or comprehensive judgment. Comprehensive judgment refers to determining whether it is the same as or similar to the protected design through all the compared designs. If the overall composition of the two is similar, the average consumer will often be confused. And this is exactly what the infringer wants to see. However, it must be noted that two possibilities need to be ruled out in comprehensive judgment. First of all, the previously known design that does not belong to the invention point of the design patent must be excluded from the overall design. Secondly, we should be able to exclude the functional design report from the comparison. Although the difference between design and works of art lies in the functionality of the former, the design patent protects not the functionality of the product, but its aesthetic components. Of course, the compared product and the compared product must also belong to the same product in order to determine infringement, which is the condition stipulated in Articles 3 1 and 56 of the Patent Law. Even if the compared designs are not similar as a whole, it is still necessary to judge whether the main parts are similar. It is important that some products have parts that are easy to attract the attention of ordinary consumers. According to the review guidelines, the determination of important departments is closely related to the factors that attract the attention of ordinary consumers. When determining the important parts, it can be determined by combining the use status of the product, the appearance design status and aesthetic feeling of similar or similar products in the past. Generally speaking, the parts that users can't observe and the parts that are difficult to observe, such as the bottom of tables and chairs, the back of wall-mounted fixed mailboxes, the back of license plates, the back and bottom of audio-visual appliances such as televisions, the back of watches, the bottom of carpets, the bottom of bottles and cans, and the parts other than the air intake panel of the ventilator in the ceiling bathroom, will not attract the attention of ordinary consumers and cannot be used as an important part of judgment. Similarly, when comparing the important parts, it is also necessary to remove the important parts that belong to the previously known designs and functions, and then compare them. For example, a key product consisting of a key chain, a key card and a key ring can take the key chain and the key card which are easy to attract the attention of ordinary consumers as key components under the condition that the shape of the key ring is a conventional circle (that is, under the condition that this design constitutes a known design rather than an invention); When the periphery of the cross section of the profile is a regular rectangle, its cross section is a part that is easy to attract the attention of ordinary consumers who buy and use (install) the product, and it is an important part of the product. If the overall comparison departments are not similar, but the main comparison departments are similar, it can be considered as infringement. However, if the appearance of an important part of the comparative design is not similar to that of the corresponding part of the protected design, even if they are similar on the whole, there is no infringement.