According to the current laws in China, when a patent is infringed, there are three (official) patent protection methods to choose from. They are: 1. Patent management (processing) methods; 2. Patent civil litigation channels; 3. Patent criminal proceedings. The patentee can decide the way to adopt according to the nature and circumstances of patent infringement and the attitude and compensation of the infringer in the process of patent infringement. Article 60 of China's Patent Law stipulates 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). Article 63 of this law stipulates that anyone who counterfeits a 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 his illegal income and may concurrently impose a fine of less than four times his illegal income; 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. Article 216 of the Criminal Law stipulates that whoever counterfeits another person's patent, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined. ("serious circumstances" means: "(1) the amount of illegal business operations is more than 200,000 yuan or the amount of illegal income is more than 100,000 yuan; (2) Causing direct economic losses of more than 500,000 yuan to the patentee; (3) Counterfeiting more than two patents of others, with an illegal business amount of more than 100,000 yuan or an illegal income amount of more than 50,000 yuan; (4) Other serious circumstances. ) 1. General patent infringement can be reported to the patent administration department (local intellectual property office) for administrative treatment. According to the circumstances of infringement, the patent administration department may make a decision on administrative punishment according to its duties: 1. Ordering the infringer to stop the infringement; 2. Confiscation of illegal income; 3. Fines, etc. In the process of administrative treatment, the patent administrative department may take the following administrative measures: 1. Investigate and collect relevant evidence of infringement; 2. Seal up and detain products suspected of counterfeiting patents. " "Investigating and collecting evidence of infringement" and "seizing and detaining counterfeit patent products" are both powerful evidence for prosecuting infringers and solving the problem of infringement compensation in the future. At present, the country has gradually realized the importance and urgency of protecting intellectual property rights, and believes that independent innovation is a long-term solution for a country's benign development. Therefore, the "Twelfth Five-Year Plan" outlines the national policy of "building an innovative country and society". From the central government to local governments (all departments jointly), efforts have been intensified to crack down on IPR infringement and counterfeiting, and a good national atmosphere for IPR protection is gradually being established. The administrative department of patent management is the functional department of the state in charge of patent work, which plays the first role in the field of cracking down on patent infringement and safeguarding rights, and its role in handling the whole patent infringement incident should be increasingly prominent. Patent civil litigation is generally the way to solve patent compensation and stop infringement. The patentee usually takes sufficient evidence of infringement as the premise, according to Article 65 of the Patent Law: "The amount of compensation for infringement of the patent right shall be determined according to the actual loss suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the compensation of 1 10,000 yuan or more and1100,000 yuan or less according to the type of patent right and the nature and circumstances of the infringement, and ask the infringer for infringement compensation. Of course, in the field of controlling patent infringement, the patent law also gives the patentee 1. 2. Apply for pre-litigation evidence preservation. 3. Patent criminal litigation is a way to protect the rights of specific patent infringement. Article 216 of the Criminal Law stipulates that whoever counterfeits another person's patent, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined. The acts of "counterfeiting others' patents" and "specific" here are as follows: 1. Without permission, mark the patent number of others on the product or product packaging; 2. knowingly selling 1 products; 3. Use other people's patent numbers without permission in product manuals and other materials. Article 77 of China's Criminal Procedure Law stipulates: "If the victim suffers material losses due to the defendant's criminal behavior, he has the right to file an incidental civil action in the course of criminal proceedings.
Legal objectivity:
First, how to take the patent protection process 1? Apply to the patent administration authority for mediation: No need, the parties may bring a lawsuit directly to the people's court without administrative mediation. However, the decision of the patent administration authority has to go through judicial review, and the dissatisfied party can also bring an administrative lawsuit to the court, and the administrative lawsuit has to go through two trials, so it is difficult to implement it across provinces. 2. Bring a lawsuit to the court: compare and analyze the technology of the suspected infringer with his own patented technology to determine whether the patent infringement is established; Investigate the scope or degree of infringement, and prepare the complaint and relevant evidence; Filing a case in a court with jurisdiction; After the hearing, wait for the court's ruling or judgment to take effect; Apply for enforcement. The limitation of action is 2 years, counting from the date when the patentee or interested party knows or should know about the infringement. Two. Related laws Article 60 of the Patent Law of People's Republic of China (PRC) * * * If a patent is exploited without the permission of the patentee, that is, the patent right is infringed. In case of any dispute, the parties concerned shall settle it 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). 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 manufacturing method is different from the patented method. 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. Article 62 In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement. Article 63 Anyone who counterfeits a 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 his illegal income, and may concurrently impose a fine of less than four times his illegal income; 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. Article 64 When the administrative department for patent affairs investigates and deals with the suspected patent counterfeiting according to the obtained evidence, it may request the relevant parties to investigate the situation related to the suspected illegal act; On-site inspection of the places where the parties are suspected of illegal acts; cheque