Q: Article 11 of the Patent Law stipulates that after the patent right is granted, it shall not be ..... without the permission of the obligee, which means that protection begins after the right is granted. However, the third paragraph of Article 62 also stipulates that (only) those who have manufactured the same product or used the same method before the patent application date and continue to manufacture or use it within the original scope are not regarded as infringement. Accordingly, protection begins from the application date. How to understand the relationship between these two articles? Article 11 of the Patent Law stipulates that after the patent right is granted, it shall not be ..... without the permission of the obligee, which means that protection begins after the right is granted. However, the third paragraph of Article 62 also stipulates that (only) those who have manufactured the same product or used the same method before the patent application date and continue to manufacture or use it within the original scope are not regarded as infringement. Accordingly, protection begins from the application date. How to understand the relationship between these two articles?
A: Juntong Legal Online Consultation answers
The person responsible for patent infringement, if it is the seller, will not be liable for compensation according to the second provision of Article 63 of China's Patent Law: if it is used or sold for the purpose of production and operation without the permission of the patentee or the product directly obtained according to the patent method, it can prove its legal source.
what do you mean? There are three meanings:
(1) As long as the infringing product is used or sold for production and business purposes, it constitutes patent infringement. That is to say, selling other people's patented products without permission is definitely an infringement.
(2) those who can prove the legal source of their products will not be liable for compensation. It is necessary to produce a formal purchase contract and an official invoice to prove the legal source of the product. Here, these materials are mainly used to prove the "goodwill" of the actor. Therefore, if the actor claims that it was bought on Taobao, or bought in a friend's factory, etc., it cannot be exempted. Because we should pay attention to a reasonable source, legal purchase channels, normal sales contracts and reasonable prices here. It is hard to say that it is reasonable and kind to buy a pair of Gucci bags with 1 yuan on Taobao.
(3) It shall not be liable for compensation, but shall be liable for stopping the infringing act. Unsold infringing products shall not be sold in the market again, and it shall bear the reasonable expenses arising from the dispute. The sealed products should be sealed or destroyed on the spot. As for the loss of the purchased goods, you can only seek recourse from your family.