Criteria for judging patent infringement

(1) The infringing object shall be a valid patent with a patent right in China. First of all, in view of the regional nature of patent rights, valid patents generally refer to patents authorized by China National Intellectual Property Administration. Secondly, in view of the timeliness of the patent right, only within the specified protection period, the patent right that has not expired due to payment, invalidity, abandonment and other reasons is a valid patent. It should be noted that if a patent right is declared invalid for some reason, it is regarded as nonexistent from the beginning, so even if someone else has implemented it before, it is not patent infringement.

(2) there are illegal acts. That is, the actor has the behavior of exploiting the patent for profit without the permission of the patentee.

It should be noted that Article 63 of the Patent Law stipulates five acts that are not regarded as infringement, which is an exception to the patent tort liability. If the actor can't provide evidence as a defense, it shall be deemed to constitute patent infringement and bear the responsibility according to law.

(3) The actor is subjectively at fault. The subjective fault of the infringer includes intention and negligence. Intention means that the actor knows that his behavior is an act of infringing others' patent rights and implements it; The so-called negligence refers to the behavior that the actor infringes the patent right of others because of negligence or overconfidence. However, there are exceptions. For example, the second paragraph of Article 63 of the Patent Law stipulates that even if the actor is subjectively innocent, it also constitutes patent infringement, but it is not liable for compensation.

(four) should be for the purpose of production and operation. Article 11 of the Patent Law stipulates that after an invention-creation is granted a patent right, no one may exploit the patent unless otherwise provided for in this Law, and the exploitation shall not be for the purpose of production and operation. Therefore, the purpose of production and operation should also be one of the constitutive requirements for judging patent infringement.

Legal basis:

Article 62 of the Patent Law of People's Republic of China (PRC) In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design implemented by him belongs to the existing technology or design, it does not constitute patent infringement.

Article 63 of the Patent Law of People's Republic of China (PRC) * * * counterfeit patents, in addition to bearing civil liability according to law, shall be ordered by the administrative department for patent affairs to make corrections and make a public announcement, and the illegal income shall be confiscated, and a fine of less than four times the illegal income may be imposed; If there is no illegal income, a fine of less than 200,000 yuan may be imposed; If a crime is constituted, criminal responsibility shall be investigated according to law.