First, we should pay attention to the following aspects to avoid patent infringement.
(1) When developing new products, secret-related enterprises should reduce the number of project team members as much as possible and require them to undertake confidentiality obligations. The project name can be coded. Before applying for a patent, there will be no press conference, no papers and no appraisal meeting. The purpose of this is to prevent competitors from knowing the development trend and intention of this enterprise, especially the technical scheme of new products, and to avoid the infringement of this enterprise caused by competitors applying for patents first.
(2) The development of patent investigation is changing with each passing day, and the number of patent documents is also increasing at the rate of 6.5438+0 million pieces per year, and most inventions belong to improved inventions. Therefore, novelty retrieval must be carried out before applying for and implementing patents to avoid falling into the protection scope of others' patents. Optimism that one's invention belongs to the first innovation without novelty search and luck that the same invention will not exist are absolutely unacceptable. Even if an invention without novelty search can apply for a patent, its legal stability is not firm. There may be gains and losses, and they are investigated by law for alleged infringement.
(3) Pre-emptive patent application must be pre-emptive, especially in countries that adopt the principle of first application. Article 9 of China's Patent Law stipulates that if two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant. Therefore, enterprises should not only nip in the bud, but also take the initiative to seize the commanding heights when formulating patent application strategies. This will prevent the same invention from being patented again. Therefore, it will greatly reduce the probability that this enterprise infringes the patent rights of others.
Second, how to collect evidence of patent infringement
Evidence of patent infringement can be collected by the parties themselves or by the people's court, including the name, address and business scope of the infringer; Physical objects, photos, product catalogs, sales invoices, purchase and sale contracts, etc. Infringed articles.
Third, how to conduct patent infringement investigation and evidence collection?
(a) infringement of patent rights, will bear three responsibilities in China:
1, civil liability, civil liability is mainly reflected in compensation, and the standard of compensation is generally infringement income.
2, administrative responsibility, administrative patent infringement is relatively small, unlike infringement of trademark rights will be fined, enterprises do not care about this.
3, criminal punishment, infringement of patent rights constitutes a crime, will be sentenced to fixed-term imprisonment.
(2) The patentee or interested party shall take the following measures when discovering the act of infringing his patent right:
1, confirm the existence of infringement facts, and analyze the reliability of your own patent.
Seriously and carefully investigate the infringing subject matter, obtain evidence, and determine the existence of infringing facts. At the same time, we should carefully determine whether our patent right may be declared invalid.
2, find out the specific circumstances of the infringement and the degree of loss.
That is to find out the degree of infringement by the infringer, including production scale, usage, sales channels, sales quantity and price, and the amount of economic losses suffered on this basis, as well as the unit, name and address of the infringer.
Step 3 decide on countermeasures
According to different specific conditions, combined with their own reality, take corresponding countermeasures:
(1) If it has the implementation ability or has already implemented it, and wants to continue monopolizing the market, it should take measures to resolutely stop the infringement, and resolutely demand compensation according to the economic and technological losses calculated by conclusive evidence;
(2) If you don't have the ability to implement it, or you can implement it yourself, but you still want others to pay, you can make up the license contract through legal procedures and turn the infringement into a license implementation agreement.
4. Concrete steps that can be taken
(1) I or my agent shall directly negotiate with the infringer and solve the problem through negotiation without harming their own rights and interests;
(2) If the agreement fails and it is really necessary, you may request the patent administration organ for mediation;
(3) If you are not satisfied with the decision of the patent administration organ, you can solve it through the investigation company.
Legal objectivity:
Article 60 of the Patent Law of People's Republic of China (PRC) The patent administration department in the State Council shall promptly notify the patentee of the decision to grant a compulsory license for exploitation, and register and announce it. The decision to grant compulsory license shall stipulate the scope and time of implementation according to the reasons for compulsory license. When the reasons for compulsory license are eliminated and no longer exist, the administrative department for patent in the State Council shall, at the request of the patentee, make a decision to terminate the compulsory license after examination. Article 69 of the Patent Law of People's Republic of China (PRC) * * * When investigating suspected patent counterfeiting, the department responsible for patent law enforcement has the right to take the following measures according to the evidence obtained: (1) Ask the relevant parties and investigate the situation related to the suspected illegal behavior; (two) on-site inspection of the places where the parties are suspected of illegal acts; (3) consulting and copying contracts, invoices, account books and other relevant materials related to suspected illegal acts; (four) to inspect the products related to the suspected illegal acts; (5) Products proved to be counterfeit patents may be sealed up or detained. When handling patent infringement disputes, the administrative department for patent affairs may, at the request of the patentee or interested party, take the measures listed in Items (1), (2) and (4) of the preceding paragraph. When the patent law enforcement department and the patent administration department exercise their functions and powers as prescribed in the preceding two paragraphs according to law, the parties concerned shall give assistance and cooperation, and shall not refuse or obstruct them. Article 47 of the Copyright Law of People's Republic of China (PRC) * * * Radio stations and television stations have the right to prohibit the following acts without their permission: (1) broadcast the programs they broadcast by wired or wireless means; (2) Recording and reproducing radio stations and radio and television; (three) broadcast radio and television to the public through the information network. The exercise of the rights stipulated in the preceding paragraph by radio stations and television stations shall not affect, restrict or infringe upon the exercise of copyright or copyright-related rights by others. The term of protection of rights stipulated in the first paragraph of this article is fifty years, ending on 65438+February 3 1 day in the fiftieth year after the first broadcast of radio and television.