Legal analysis
Patents are generally documents issued by government agencies or regional organizations representing several countries according to their applications. This kind of document records the contents of the invention and creation, and in a certain period of time, it has produced such a legal state that the patented invention and creation can only be implemented by others with the permission of the patentee. There are three kinds of patents: invention, utility model and design. To apply for a patent, one must have: novelty, creativity and practicality. You have entered the market before applying for a patent, which shows that the patent has lost its novelty. In other words, the technology does not have the basic elements of patent application. If the product has applied for a patent but is sold publicly within six months after applying for a patent, the patent is invalid; After the product is publicly sold, it is ok to apply for a patent, and you can also get a patent certificate for utility model and appearance. However, if someone proposes to declare the patent invalid and provides corresponding evidence to prove that it has entered the market, the patent can be declared invalid. At this time, if the public sale is copied or imitated by others, there is no way to protect rights. After the patent is authorized, the rights can be protected from the date of authorization announcement; In addition, the time point of calculating compensation for losses is also after the authorization announcement, and the previous one is not considered infringement. The biggest risk is to sell it publicly first, and then apply for an appearance patent. Because of the first public sale, people may apply for a patent first, but the patent system in China is based on the principle of first application, that is, whoever applies for the same design first will get the patent right. Therefore, this way of selling first and applying later may not only fail to obtain the patent right, but may also infringe the patent right of others in the end. Therefore, the patent of the party concerned has not taken effect, and there is no infringement if it has been sold in the market. You can sue the other party for infringement after it takes effect.
legal ground
Article 40 in the Patent Law of People's Republic of China (PRC), if the application for a patent for utility model or design is not found rejected after preliminary examination, the patent administration department of the State Council shall make a decision to grant the patent right for utility model or design, issue the corresponding patent certificate, and register and announce it at the same time. The patent right for utility model and the patent right for design shall take effect as of the date of announcement.