2. The implementation of the subordinate patent shall obtain the consent of the prior patentee, otherwise it shall be regarded as infringement. But you can apply for a compulsory license.
The patent administration department in the State Council may, upon the application of the latter patentee, grant a compulsory license to exploit the invention or utility model of the previous patent; In addition, in the case of compulsory license in accordance with the above provisions, the patent administration department in the State Council may also grant compulsory license according to the application of the patentee of the previous invention or utility model.
3, the implementation of the subordinate patent (see carefully below)
In the conflict of rights, the subordinate patent conflicts with the basic patent. In a patent infringement lawsuit, if the defendant's subordinate patentee exploits his patent without obtaining the compulsory license to exploit the basic patent, unless mediation is reached, the court will judge the defendant's patent infringement and make a decision on infringement compensation. This is not different from the principles on which general patent infringement judgments, patent infringement lawsuits and judicial decisions are based. In patent infringement litigation, the court should take the valid patent right granted by China Patent Office as the object of legal protection and examine whether it has been infringed. Whether the plaintiff's patent right or the patent rights owned by both the original and the defendant really meet the patentability conditions shall be resolved by the litigants through revocation procedures or invalid procedures; If the party concerned fails to request the Patent Reexamination Board to revoke or declare the patent right of the other party invalid, the court shall determine that the patent right owned by the party concerned is valid. For the same or similar products, different people enjoy the patent right under the following three circumstances: first, different inventors have made different inventions, and their technical solutions are essentially different; Second, the latter patented technology is an improvement or enhancement of the former patented technology, which is more advanced than the former patented technology, but the implementation of this technology depends on the implementation of the former patented technology, so it belongs to the subordinate patent; Third, because the utility model patent has not been substantially examined, the technical schemes of the two utility model patents before and after are the same or equivalent, and the latter utility model patent belongs to repeated authorization. When trying a patent infringement dispute case, the court should examine whether the main technical features of the products manufactured by the defendant fully cover the plaintiff's patent protection scope, as long as the plaintiff files a patent application before the defendant, according to the principle of first application stipulated in the Patent Law of People's Republic of China (PRC). Generally speaking, in the first case mentioned above, because the technical scheme invented by the defendant is essentially different from that invented by the plaintiff, the defendant does not constitute infringement. In the latter two cases, or in order to implement its subordinate patent, the defendant implemented the prior patented technology without the permission of the prior patentee; Or because the technical schemes of the two utility model patents before and after are the same or equivalent, the defendant repeatedly licensed the latter patented technology, which constituted an infringement of the plaintiff's patent right. Therefore, the court should not reject the plaintiff's claim just because the defendant owns the patent right, but should analyze the specific situation of the defendant's patent right and the relationship with the plaintiff's patent right to determine whether it constitutes infringement.
I hope my answer can help you.