1. If the manufacturer has started to produce and sell this product before the patent application date, and has not changed the manufacturing methods and procedures after the patent application date, then the manufacturer's behavior cannot be considered as patent infringement.
2. If the manufacturer manufactures and sells patented products after the date of patent application, it can be considered as patent infringement.
Solution: You can negotiate with the manufacturer. If negotiation fails, you can bring a lawsuit to the court.
Reference law: People's Republic of China (PRC) Patent Law;
Chapter I General Provisions
Article 1 In order to protect the patent right of invention and creation, encourage invention and creation, promote the popularization and application of invention and creation, and promote the progress of science and technology.
This law is formulated in order to learn technological progress and innovation and meet the needs of socialist modernization.
Article 2 Inventions and creations mentioned in this Law refer to inventions, utility models and designs.
Article 3 The patent administrative department of the State Council is responsible for the management of patent work throughout the country; Accepting and examining patent applications in accordance with the law.
Grant a patent right.
The departments for patent administration under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas.
Article 4 Where an invention-creation applying for a patent involves national security or vital interests and needs to be kept confidential, it shall be handled in accordance with the relevant provisions of the state.
Handle.
Article 5 No patent right shall be granted for inventions and creations that violate state laws, social ethics or harm public interests.
Article 6 It is a duty that should be performed to perform the tasks of the entity or to make inventions and creations by making use of the material and technical conditions of the entity.
Job invention and creation. The right to apply for a patent for a service invention-creation belongs to the unit; After the application is approved, the unit is the patentee.
People.
The right to apply for a patent for a non-service invention-creation belongs to the inventor or designer; After the application is approved, the inventor or
The designer is the patentee.
An invention-creation completed by making use of the material and technical conditions of the unit has a contract with the inventor or designer.
Where there is an agreement between the right to apply for a patent and the ownership of the patent right, such agreement shall prevail.
Article 7 No unit or individual may suppress an inventor or designer's application for a patent for non-service invention-creation.
Article 8 An invention-creation completed by two or more units or individuals, in which one unit or individual accepts other units or
Unless otherwise agreed, the right to apply for a patent belongs to an invention-creation entrusted by an individual or completed by * * *.
Unit or individual; After the application is approved, the applicant unit or individual shall be the patentee.
Article 9 Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant.
People.
Article 10 The right to apply for a patent and the patent right may be transferred.
Any unit or individual within China who transfers the right to apply for a patent or the patent right to a foreigner must obtain the approval of the relevant competent department of the State Council.
Approved.
Where the right to apply for a patent or the patent right is transferred, the parties concerned shall conclude a written contract and submit it to the patent administration department of the State Council.
Remember, shall be announced by the administrative department for patent in the State Council. The transfer of the right to apply for a patent or the patent right shall take effect from the date of registration.
Article 11 After the patent right for invention and utility model is granted, no unit or individual may infringe the patent right, except as otherwise provided in this Law.
Without the permission of the patentee, the patent shall not be exploited, that is, the patent shall not be manufactured, used, promised to be sold or sold for the purpose of production and operation.
Selling or importing its patented products, or using its patented method and using, promising to sell, selling or importing it according to the agreement of the patentee.
The product directly obtained by this method.
After the patent right for design is granted, no unit or individual may exploit the patent without the permission of the patentee.
That is, it is not allowed to manufacture, sell or import its patented products for production and business purposes.
Article 12 Any unit or individual that exploits the patent of others shall conclude a written license contract with the patentee.
Pay royalties to the patentee. Licensee has no right to allow any unit or individual other than those stipulated in the contract to implement this project.
Li.
Article 13 After the publication of an application for a patent for invention, the applicant may require the entity or individual who exploits the invention to pay an appropriate fee.
Expenses.
Fourteenth invention patents of state-owned enterprises and institutions, which are of great significance to national interests or public interests, China.
The relevant departments in charge of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government may decide the scope of approval after reporting to the State Council for approval.
In the popularization and application, designated units are allowed to implement it, and the implementing units pay royalties to the patentee in accordance with state regulations.
Invention patents of collectively-owned units and individuals in China are of great significance to national interests or public interests and need to be
The popularization and application shall be handled with reference to the provisions of the preceding paragraph.
Article 15 The patentee has the right to indicate the patent mark and patent number on his patented product or the package of the product.
Article 16 A unit that has been granted a patent right shall reward the inventor or designer of a service invention-creation; invent
After the implementation of the invention patent, it shall be distributed to the inventor or designer reasonably according to the scope of its popularization and application and the economic benefits obtained.
Reward.
Article 17 An inventor or designer has the right to state clearly in the patent document that he is an inventor or designer.
Article 18 Foreigners, foreign enterprises or other foreign organizations that have no habitual residence or business office in China are in China.
Patent applications shall be handled in accordance with the agreement signed between the country to which they belong and China or the international treaties to which * * * is a party, or in accordance with the principle of reciprocity.
Then according to this rule.
Article 19 Foreigners, foreign enterprises or other foreign organizations that have no habitual residence or business office in China are in China.
To apply for a patent and handle other patent affairs, a patent agency designated by the patent administration department of the State Council shall be entrusted.
China units or individuals may entrust patent agencies to apply for patents and handle other patent affairs in China.
Reason.
Patent agencies shall abide by laws and administrative regulations, accept the entrustment of clients and handle patent applications or other special applications.
Interest affairs; The contents of the client's invention and creation shall be kept confidential, except that the patent application has been published or announced.
Ren. Specific measures for the administration of patent agencies shall be formulated by the State Council.
Article 20 Where a unit or individual in China applies to a foreign country for a patent for invention that it has completed in China, it shall first file it with that country.
When applying for a patent, the the State Council Patent Administration Department entrusts its designated patent agency to handle it, and abides by the provisions of Article 4 of this Law.
Units or individuals in China may file an international patent application in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party. expand
The applicant who files an international patent application shall abide by the provisions of the preceding paragraph.
The patent administration department of the State Council shall, in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party, this Law and the relevant provisions of the State Council.
Handling international patent applications.
Article 21 The patent administrative department of the State Council and its patent reexamination board shall follow the principles of objectivity, fairness, accuracy and timeliness.
Handle patent applications and requests as required.
Before the patent application is published or announced, the staff of the patent administration department in the State Council and the relevant personnel shall be responsible for its contents.
Obligation of confidentiality.
Chapter II Conditions for Granting Patent Rights
Article 22 An invention or utility model that has been granted a patent right shall be novel, creative and practical.
Novelty means that the same invention or utility model has not been published in domestic and foreign publications before the application date.
Has been publicly used in China or known to the public in other ways, and there is no similar invention or utility model by others.
An application has been filed with the patent administrative department of the State Council and recorded in the patent application documents published after the application date.
Creativity means that the invention has outstanding substantive characteristics and remarkable progress compared with the prior art before the filing date.
The utility model has substantial characteristics and progress.
Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
Article 23 A design that has been granted a patent right shall be published in domestic and foreign publications before the date of application.
The designs publicly used in China are not the same or similar, and shall not conflict with the legal rights previously obtained by others.
Suddenly.
Article 24 An invention-creation for which a patent is applied shall not be lost under any of the following circumstances within six months before the date of application:
Glumes:
(1) It was exhibited for the first time at an international exhibition sponsored or recognized by the China Municipal Government;
(2) It was first published at a specific academic conference or technical conference;
(3) Others disclose the contents of the application without the consent of the applicant.
Article 25 No patent right shall be granted to the following projects:
(1) scientific discoveries;
(2) rules and methods of intellectual activities;
(3) Methods of diagnosis and treatment of diseases;
(4) Species of animals and plants;
(5) substances obtained by nuclear transformation.
The production method of the products listed in Item (4) of the preceding paragraph may be granted a patent right in accordance with the provisions of this Law.
Chapter III Patent Application
Article 26 Where an applicant applies for a patent for invention or utility model, he shall submit a request, a specification, an abstract and a claim.
Ask for books and other documents.
The request shall specify the name of the invention or utility model, the name of the inventor or designer, and the name of the applicant.
Name, address and other matters.
The specification shall give a clear and complete description of the invention or utility model, so that the technicians in the technical field can
Subject to realization; Attached drawings shall be attached when necessary. The technical points of the invention or utility model shall be briefly explained.
The patent claim shall be based on the specification and indicate the scope of patent protection.
Article 27 Where an applicant applies for a patent for design, he shall submit a written request, pictures or photographs of the design and other documents.
Part, and should explain the products using the design and their categories.
Article 28 The date when the patent administrative department in the State Council receives the patent application documents shall be the filing date. If the application documents are mailed
Yes, the mailing date is the application date.
Article 29 Within 12 months from the date when the applicant first filed an application for a patent for invention or utility model abroad,
Or apply for a patent on the same subject in China within six months from the date when the design first applied for a patent abroad.
The application shall be made in accordance with the agreement signed between the foreign country and China or the international treaties to which * * * is a party, or in accordance with the mutually recognized priority.
Can enjoy the principle of priority.
Within 12 months from the date when the applicant first filed an application for a patent for invention or utility model in China, he shall file another application in the State Council.
Where the patent administration department applies for a patent on the same subject, it may enjoy priority.
Article 30 Where an applicant claims priority, he shall submit a written statement at the time of application and submit it within three months.
A copy of the patent application documents submitted for the first time; Failing to submit a reply or a copy of the patent application documents within the time limit,
Priority is considered not to be claimed.
Article 31 An application for a patent for an invention or utility model shall be limited to one invention or utility model. Belong to a
Two or more inventions or utility models in the general inventive concept may be filed as one application.
An application for a patent for a design shall be limited to a design used by a product. Used in the same category and into
Two or more designs of a group of products for sale or use may be filed as one application.
Article 32 An applicant may withdraw his patent application at any time before being granted the patent right.
Article 33 An applicant may amend the patent application documents, but an application for a patent for invention or utility model,
The modification of the document shall not exceed the scope recorded in the original specification and claims, and the modification of the application document for a patent for design shall not
Beyond the scope of the original picture or photo.
Chapter IV Examination and Approval of Patent Applications
Article 34 After receiving an application for a patent for invention, the administrative department for patent in the State Council, after preliminary examination, considers it to be in conformity with the provisions of this Law.
, eighteen months after the date of application, to be published. The patent administrative department of the State Council may publish it at an early date upon the request of the applicant.
Butch, apply.
Article 35 Within three years from the date of filing, the administrative department for patent in the State Council may, at any time, upon the application of the applicant.
Request for substantive examination of its application; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall
Be regarded as withdrawn.
The patent administrative department of the State Council may, when it deems it necessary, examine the application for a patent for invention on its own.
Article 36 Where an applicant for a patent for invention requests substantive examination, he shall submit documents related to his invention before the date of application.
Reference materials.
Where an application for a patent for invention has been filed in a foreign country, the patent administration department in the State Council may require the applicant to file it within a specified time limit.
Submit the information retrieved by the country for the examination of its application or information about the examination results; Failing to submit it within the time limit without justifiable reasons
The application is deemed to have been withdrawn.
Article 37. The administrative department for patent in the State Council considers that the application for a patent for invention is not in conformity with the provisions of this Law after substantive examination.
Notify the applicant and ask him to state his opinions or modify his application within a specified time limit; Without justifiable reasons.
If no reply is made within the time limit, the application shall be deemed to be withdrawn.
Article 38 After an application for a patent for invention has been stated or amended by the applicant, the patent administration department in the State Council shall still
Those that do not conform to the provisions of this law shall not be accepted.
Article 39 Where an application for a patent for invention is found to be rejected after substantive examination, it shall be submitted by the patent administration department of the State Council.
The decision to grant a patent right for invention shall be issued with a patent certificate for invention, and shall be registered and announced at the same time. From the date of announcement, the invention patent right
Take effect.
Article 40 Where the application for a patent for utility model or design is not found to be rejected after preliminary examination, the patent right shall be granted by the State Council.
The administrative department shall make a decision to grant the patent right for utility model or design, and issue the corresponding patent certificate. At the same time,
Register and publish. The patent right for utility model and the patent right for design shall take effect as of the date of announcement.
Article 41 The patent administration department in the State Council shall set up a patent reexamination board. The patent applicant applies to the patent administration department of the State Council.
If the applicant refuses to accept the decision to reject the application, he may request a reexamination to the Patent Reexamination Board within three months from the date of receiving the notice.
After reexamination, the Patent Reexamination Board shall make a decision and notify the patent applicant.
If the patent applicant refuses to accept the reexamination decision of the Patent Reexamination Board, he may notify the applicant within three months from the date of receiving the notice.
The people's court sued.
Chapter V Duration, Termination and Invalidation of Patent Right
Article 42 The term of patent right for invention is 20 years, and the term of patent right for utility model and patent right for design is 10 year.
Years, counting from the date of application.
Article 43 The patentee shall pay the annual fee from the year when the patent right is granted.
Article 44 In any of the following circumstances, the patent right shall be terminated before the expiration of the time limit:
(a) failing to pay the annual fee in accordance with the provisions; (2) The patentee waives his patent right in writing.
Where the patent right is terminated before the expiration of the time limit, it shall be registered and announced by the patent administration department of the State Council.
Article 45 From the date when the patent administrative department of the State Council announced the grant of the patent right, any unit or individual thinks that the patent is special.
Where the granting of the beneficial right does not conform to the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid.
Article 46 The Patent Reexamination Board shall promptly examine the request for invalidation of the patent right, make a decision and notify it.
The claimant and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.
If you are dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right, you may start from the date of receiving the notice.
Bring a suit in a people's court within three months. The people's court shall notify the other party to the procedure for requesting invalidation to act as a third party.
Participate in litigation.
Article 47 An invalid patent right shall be regarded as nonexistent from the beginning.
The decision to declare the patent right invalid, and the patent infringement judgment made and executed by the people's court before the patent right was declared invalid
Decisions, rulings and decisions on handling patent infringement disputes that have been performed or executed, and patent licenses that have been performed.
Contracts and patent transfer contracts are not retroactive. However, if the patentee's malice causes losses to others, it shall make compensation.
Give compensation.
In accordance with the provisions of the preceding paragraph, the patentee or patent assignor fails to transfer the patentee or patent right to the licensee.
If the return of patent royalties or patent transfer fees obviously violates the principle of fairness, the patentee or patent assignor shall
Return all or part of the patent royalty or patent transfer fee to the licensee or patent assignee.
Chapter VI Compulsory License for Patent Exploitation
Article 48 A unit with the conditions for implementation shall request the patentee of an invention or utility model for permission to implement it on reasonable terms.
Patent, but failed to obtain a license within a reasonable period of time, the patent administrative department of the State Council according to the application of the unit.
Please give a compulsory license to exploit the invention patent or utility model patent.
Article 49 When there is a state of emergency or extraordinary situation in the country, or for the purpose of public interest, the State Council specializes in
The administrative department may grant a compulsory license to exploit a patent for invention or utility model.
Article 50 An invention or utility model that has been granted a patent right is an invention or utility model that has already been granted a patent right.
The implementation of major technological progress with great economic significance depends on the implementation of the previous invention or utility model, which is a national event.
The patent administration department of this Institute may, upon the application of the latter patentee, grant a compulsory license to exploit the former invention or utility model.
Yes
If a compulsory license is granted in accordance with the provisions of the preceding paragraph, the patent administration department of the State Council shall, according to the former patentee's
The applicant may also obtain a compulsory license to exploit the latter invention or utility model.
Article 51 Where any unit or individual applies for compulsory license in accordance with the provisions of this Law, it shall give reasons for not putting forward reasonable conditions.
Proof of signing a license contract with the patentee.
Article 52 The patent administration department in the State Council shall promptly notify the patentee of the decision to grant a compulsory license for exploitation.
People, and to be registered and announced.
The decision to grant compulsory license shall stipulate the scope and time of implementation according to the reasons for compulsory license. Compulsory license
When the cause of extinction no longer exists, the patent administrative department of the State Council shall make a final decision upon examination at the request of the patentee.
Stop executing the compulsory licensing decision.
Article 53 A unit or individual that has obtained a compulsory license for exploitation shall not have the exclusive right to exploit it, nor shall it have the right to license others to exploit it.
Implement.
Article 54 A unit or individual that has obtained a compulsory license for exploitation shall pay a reasonable royalty to the patentee, the amount of which is
Consultation between the two parties; If both parties fail to reach an agreement, it shall be decided by the patent administration department of the State Council.
Article 55 If the patentee refuses to accept the compulsory licensing decision made by the patent administrative department of the State Council, the patentee shall
And the decision made by the entity or individual that obtained the compulsory license to the patent administration department of the State Council on the compulsory license fee.
Those who refuse to accept it may bring a suit in a people's court within three months from the date of receiving the notice.
Chapter VII Protection of Patent Right
Article 56 The scope of protection of the patent right for invention or utility model shall be subject to the contents of the patent right and the specification and its annexes.
Figures can be used to explain the claim.
The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs.
Article 57 Where a dispute arises from the exploitation of a patent without the permission of the patentee, that is, infringement of the patent right, the parties concerned shall
Settle through consultation; Unwilling to negotiate or failing to negotiate, the patentee or interested party may bring a lawsuit to the people's court, or
Request the department in charge of patent work to handle it. When the administrative department for patent affairs finds that the infringement is established, it may
Ordering the infringer to stop the infringing act immediately, and if the party refuses to accept it, it may comply with it within 15 days from the date of receiving the notice of handling.
The Administrative Procedure Law of the People's Republic of China brings a lawsuit to the people's court; If the infringer fails to prosecute and stop the infringement upon expiration of the time limit,
The department in charge of patent work may apply to the people's court for compulsory execution. The department dealing with patent work is the party concerned.
If requested, mediation can be conducted on the amount of compensation for patent infringement; If mediation fails, the parties may follow People's Republic of China (PRC).
* * * People's Republic of China (PRC) Civil Procedure Law.
Where a patent infringement dispute involves an invention patent of a new product manufacturing method, the unit or individual that manufactures the same product shall lodge a complaint.
Prove that the manufacturing method of its products is different from the patented method; Where a patent for utility model is involved, the people's court or patent worker shall be responsible for it.
The department may require the patentee to issue a search report made by the patent administration department of the State Council.
Article 58 Anyone who counterfeits another person's patent shall bear civil liability according to law, and the administrative department for patent affairs shall order him to make corrections.
And make a public announcement, confiscate the illegal income, and may impose a fine of less than three times the illegal income. If there is no illegal income, a fine of less than five times may be imposed.
A fine of not more than ten thousand yuan; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 59 Patent workers shall be responsible for passing off non-patented products as patented products or passing off non-patented methods as patented methods.
The department shall order it to make corrections and make an announcement, and may impose a fine of less than 50,000 yuan.
Article 60 The amount of compensation for patent infringement shall be determined according to the losses suffered by the obligee or the infringer due to infringement.
Determine the benefits obtained; If it is difficult to determine the loss of the infringer or the interests of the infringer, it shall refer to the patent license.
The multiple of the cost is reasonably determined.
Article 61 Where the patentee or interested party has evidence to prove that another person is infringing or will infringe his patent.
The behavior of the obligee, if not stopped in time, will cause irreparable damage to its legitimate rights and interests, and may be brought to the people's court before prosecution.
The hospital applied to take measures to stop relevant behaviors and property preservation.
The people's court shall apply the provisions of Articles 93 to 96 of the Civil Procedure Law of People's Republic of China (PRC) in handling the application mentioned in the preceding paragraph.
And article 99.
Article 62 The limitation of action for patent infringement shall be two years, provided that the patentee or interested party knows or should know.
Counting from the date when the infringement is known.
Where an application for a patent for invention is published before the patent right is granted, the patentee shall demand compensation for the use of the invention without paying an appropriate royalty.
The limitation of action for paying royalties is two years, counting from the date when the patentee knows or should know that others are using his invention, but
Yes, if the patentee knows or should know before the date of patent grant, it shall be counted from the date of patent grant.
Article 63 Any of the following circumstances shall not be regarded as infringement of the patent right: (1) The patentee manufactures, imports or transits through the territory.
A patented product manufactured or imported with the permission of the patentee or a product directly obtained according to the patented method is used or licensed after it is sold.
Commitment to sell or sell products;
(2) Before the date of patent application, the same product has been manufactured, the same method has been used, or it has been manufactured and used.
To be prepared, and continue to manufacture and use only within the original scope;
(3) Foreign means of transport that temporarily pass through China's territorial waters and airspace shall be implemented in accordance with the agreement signed between the country to which they belong and China.
Discuss or * * * with international treaties, or according to the principle of reciprocity, for the needs of the means of transport itself in its devices and equipment.
Use related patents;
(four) the use of relevant patents for scientific research and experiments.
For the purpose of production and business operation, using or selling patented products that the patentee does not know about, without the permission of the patentee.
Products directly obtained according to the patented method shall not be liable for compensation if they can prove the legal source of their products.
Article 64 Whoever, in violation of the provisions of Article 20 of this Law, applies for a patent in a foreign country and divulges state secrets shall be punished by his unit or higher authorities.
The competent authority at a higher level shall give administrative sanctions; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 65 An inventor or designer shall be deprived of the right to apply for a patent for a non-service invention-creation and other rights and interests as stipulated in this Law.
The unit or the competent authority at a higher level shall be given administrative sanctions.
Article 66 The department in charge of patent work shall not participate in business activities such as recommending patented products to the society.
Where the administrative department for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or supervisory organ to make corrections and eliminate the shadow.
Ring, the illegal income shall be confiscated; If the circumstances are serious, the directly responsible person in charge and other directly responsible personnel shall be punished according to law.
Give administrative sanctions.
Article 67 The functionaries of state organs engaged in patent administration and other relevant state organs neglect their duties.
Duty, abuse of power, corruption, which constitutes a crime, shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be punished according to law.
Administrative sanctions.