I. Validity of patent right
First of all, it is necessary to confirm whether the patent right is valid. This includes checking whether the patent has been authorized, whether it is within the validity period, whether it is declared invalid, etc. Only valid patent rights can be protected by law. Therefore, when identifying patent infringement, we must first confirm the effectiveness of the patent right.
Second, the nature of the alleged infringement
Secondly, it is necessary to analyze the nature of the alleged infringement. Including judging whether the accused infringer has committed any act stipulated in the patent law, such as manufacturing, using, promising to sell, selling or importing. These acts are the basic elements of patent infringement, and if the accused infringer commits these acts, it may constitute patent infringement.
Three. Similarity between accused infringing products and patents
In addition, it is necessary to compare the similarity between the accused infringing product and the patent. Including comparing whether the technical characteristics, structure, function and other aspects of the accused infringing product are the same as or similar to the patent. If the accused infringing product is highly similar to the patent, it may constitute patent infringement.
When comparing similarities, we should also pay attention to the scope of patent protection. The scope of patent protection is limited by the claims, and only the acts falling within the scope of patent protection constitute patent infringement. Therefore, when identifying patent infringement, it is necessary to carefully analyze the content of the claim and determine the scope of patent protection.
Fourth, other factors.
In addition to the above factors, other factors that may affect the determination of patent infringement need to be considered. For example, whether the accused infringer has a reasonable defense and whether he has the preemptive right. These factors may have an impact on the determination of patent infringement.
To sum up:
The determination of patent infringement is a complex process, which needs to consider many factors comprehensively. When identifying patent infringement, we should first confirm the validity of patent right, then analyze the nature of the alleged infringement and the similarity between the accused infringing product and patent, and consider other factors that may affect the identification. Only by comprehensively considering these factors can we accurately identify patent infringement.
Legal basis:
patent law of the people's republic of china
Article 1 1 stipulates:
After the patent right for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import the patented product for production and business purposes, nor may it use the patented method and use, promise to sell, sell or import the product directly obtained according to the patented method.
After the design patent is granted, no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, promise to sell, sell or import its patented product for production and business purposes.
patent law of the people's republic of china
Article 65 provides that:
If a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, it shall be settled by the parties through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).