The elements that constitute patent infringement include two aspects: formal conditions and substantive conditions. Among them, the form is patent infringement and its legal responsibility.
Mainly: 1) The implementation behavior (that is, your production behavior) involves a valid China patent; 2) The implementation must be carried out without the permission or authorization of the patentee; 3) The implementation behavior must be aimed at production and operation. Whether the actor has subjective intention is not a formal requirement.
According to the current patent law, the specific forms of patent infringement can be divided into:
(a) without permission to implement the patent act of others. According to the provisions of Article 11 of the Patent Law, it includes the following three specific forms: manufacturing, using, promising to sell, selling or importing patented products invented or utility models by others; Using other people's patented methods and using, promising to sell, selling or importing products directly obtained according to this method; Manufacturing, selling or importing patented products of other people's designs.
(2) the act of counterfeiting others' patents. This kind of patent infringement refers to the infringement of the trademark right of the patentee. According to Article 84 of the Detailed Rules for the Implementation of the Patent Law (200 1), it includes the following four specific forms: without permission, marking the patent number of others on the products manufactured or sold by it; Using other people's patent numbers in advertisements or other promotional materials without permission, causing people to mistake the technology involved for other people's patented technology; Using someone else's patent number in a contract without permission, causing people to mistake the technology involved in the contract for the patented technology of others; Forging or altering other people's patent certificates, patent documents or patent application documents.
(3) passing off non-patented products as patented products and passing off non-patented methods as patented methods. According to the provisions of Article 59 of the Patent Law, such acts need to bear general civil tort liability, and the administrative department for patent affairs shall order them to make corrections and punish them fairly.
(4) In addition to the clear provisions of the law, there are two kinds of infringement in theory and practice: negligent counterfeiting, that is, the actor intentionally pretends to be a patent and randomly invents a patent number, which is exactly the same as the patent number obtained by someone. In this case, even if there is no intention of counterfeiting, the result of its behavior still constitutes counterfeiting others' patents. Reverse counterfeiting, that is to say, the actor sells the patented products legally obtained by others with his own patent number, is obviously not enough to constitute "counterfeiting others' patents", but it actually violates the marking right of the legitimate patentee, which is still an infringement, and the infringer should bear civil liability.
What you are producing is a new type of commodity, which must be for commercial purposes. Although others have patent rights, they may not infringe upon them. You have to prove that your product was produced before the publication of his patent documents, and if it is judged not to be infringing, it will also limit your sales in the original market.