1, patent application right dispute;
2. Disputes over the use fee for inventions and creations;
3. Disputes over the implementation of compulsory licensing fees;
4. Patent infringement disputes;
5. Disputes over patent ownership.
1. Patent dispute refers to the dispute between the parties about patent rights and obligations. There are many kinds of patent disputes. Generally speaking, there are six main categories:
(A) the right to apply for a patent dispute
The dispute of patent application right is a kind of patent dispute, which mainly includes: first, the dispute of service invention creation or non-service invention creation; The second is the dispute about who is the inventor or designer of the invention; Third, there is a dispute about who has the right to apply for a patent for the invention-creation completed by cooperation or entrusted.
(2) Disputes over royalties for inventions and creations
Disputes arising from the expenses for the use of inventions and creations after the publication or announcement of patent applications and before the grant of patent rights. According to the provisions of China's patent laws and regulations, during the period from the publication of the patent application to the grant of the patent right, if someone uses the patented invention, the applicant has the right to demand remuneration or reserve the right to collect royalties after the patent right is approved. In case of a dispute between the parties, the patentee may request the patent administration organ for mediation, or bring a lawsuit directly to the people's court.
(3) Disputes over the implementation of compulsory licensing fees
Compulsory license is involuntary license, which means that the national patent authorities allow qualified third parties to use invention patents or utility model patents through administrative procedures without the consent of the patentee, and issue compulsory licenses to them, with the aim of limiting the patentee's monopoly of patent rights. However, the licensee shall pay the royalties to the patentee. In case of dispute, the parties may bring a lawsuit to the people's court.
(4) patent infringement disputes
There are many such disputes, mainly including the disputes of illegally implementing the patent rights of others without the permission of the patentee; Patent disputes of counterfeiting others; Patent administrative infringement disputes, that is, disputes caused by patent authorities making compulsory licensing and invalidation decisions that do not conform to the provisions of the patent law, infringing or even depriving the patentee of his legal rights.
(5) Disputes over the ownership of patent rights
Refers to the dispute between the parties about who should be the real right holder after the invention is granted the patent right. The most common dispute over patent ownership is whether it is a service invention or a non-service invention, and whether the patent belongs to a * * * dispute. Such disputes can be mediated by the Patent Office or brought directly to the people's court. This kind of dispute only solves the ownership dispute, that is, only solves the subject of the patent right and who the patentee is, and does not examine the object of the patent right.
There are similarities between patent ownership dispute and patent application dispute, that is, the focus of the dispute lies in who should really hold the patented technology. However, patent ownership dispute and patent application right dispute are two different disputes. The main differences are as follows: first, from the time point of view, the dispute of patent application right occurs before the patent right is granted, while the dispute of patent ownership is the dispute after the patent right is granted; Secondly, from the content point of view, the focus of the dispute over the right to apply for a patent is who has the right to apply for a patent for an invention-creation, while the dispute over the ownership of a patent is to re-propose who is the patentee for an invention-creation that has been identified as a patent; Thirdly, from the morphological point of view, whether the subject matter of the patent application dispute can be granted a patent is still in an undecided state, while the subject matter of the patent dispute is the actual patent that has been confirmed by the patent authority; Fourthly, judging from the results, the handling of patent application disputes does not involve the ownership of patent rights, but the ownership of patent disputes must be clear about who is the real owner of the invention-creation granted patent rights.
(six) patent licensing or patent transfer contract disputes
A patent licensing contract refers to a contract in which the patentee authorizes others to use his patented invention or utility model; Patent transfer contract refers to the contract of transferring patent ownership. After the transfer, the patentee loses the exclusive right and the assignee becomes a new patent exclusive right. In practice, there are more and more such patent contract disputes between the parties.
Two, properly handle patent disputes should also be clear about the following points:
(1) Patent right refers to the exclusive right enjoyed by the obligee for patented invention-creation within the statutory time limit according to the provisions of the Patent Law. According to the patent law, the patentee enjoys exclusive rights to the patented invention-creation. Except as otherwise provided by law, no one may manufacture, use, promise to sell, sell or import its patented products, use its patented methods or use, sell or import products directly obtained by patented methods for production and business purposes. Otherwise, it constitutes infringement.
(2) Patent right is a civil right. If civil rights are infringed, the parties can choose their own ways to safeguard their rights. China's patent law stipulates three ways: first, negotiation, that is, when an infringement dispute occurs, it is settled by the parties through consultation; Second, bring a lawsuit, that is, when the parties are unwilling to negotiate or fail to negotiate, the patentee or interested party may bring a lawsuit to the people's court; The third is to request the competent department of patent work to handle it. Patent authorities refer to the patent administrative departments of provinces, autonomous regions and municipalities directly under the Central Government and other government departments and organizations that undertake patent management.
(3) to administer the administrative handling of the patent department. After a patent infringement dispute occurs, if the parties request the patent administration department to handle it, the patent administration department must handle it. If it makes a judgment based on facts and laws and finds that the infringement is established, it may order the infringer to stop the infringement immediately. If the party refuses to accept it, it may bring a lawsuit to the people's court; 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.
(4) Administrative mediation by the patent department. After a patent infringement dispute occurs, the patent administrative department may mediate the amount of patent infringement compensation at the request of the parties when handling the dispute.
(5) Evidence in patent infringement disputes. When dealing with patent infringement disputes, people's courts and patent administrative departments require relevant personnel and units to provide relevant evidence. The Patent Law stipulates that for an invention patent involving a new product manufacturing method, a unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method, that is, the accused infringer shall bear the burden of proof; Where a patent for utility model is involved, the people's court or the administrative department for patent affairs may require the patentee to issue a search report made by the patent administrative department of the State Council, so as to judge whether there is infringement or not and handle disputes accurately and timely.
Third, the solution
(1) consultation. Where a dispute arises from the exploitation of a patent without the permission of the patentee, that is, infringement of the patent right, it shall be settled by the parties through consultation.
(2) litigation. If the parties to a patent dispute are unwilling to negotiate or fail to negotiate, the patentee or interested party may bring a lawsuit to the people's court.
(3) mediation by the patent administration department. The parties to a patent dispute may also request the administrative department for patent affairs to handle it. The patent administrative organ refers to the patent administrative organ established by the relevant competent department of the State Council or the local people's government. The patent administrative department of the State Council is responsible for the management of patent work throughout the country; Accept and examine patent applications in a unified manner and grant patent rights according to law. 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.
Legal basis:
patent law of the people's republic of china
Article 61
Where a patent infringement dispute involves a new product manufacturing method invention patent, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method. Where a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the department in charge of patent work may require the patentee or interested party to issue a certificate that the patent administration department of the State Council searches for the relevant utility model or design; The patent evaluation report made after the analysis and evaluation shall be used as evidence for hearing and handling patent infringement disputes.