Patent right is the exclusive right of the patentee to use his invention and creation, and patent infringement refers to the illegal act of implementing a valid patent protected by law for the purpose of production and operation without the permission of the patentee.
The elements that constitute patent infringement include two aspects: formal conditions and substantive conditions. Among them, the formal requirements mainly include: 1) the implementation 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. But it can be used as a basis to measure the seriousness of the plot.
Whether the elements of patent infringement, that is, technical conditions and substantive implementation behavior belong to the scope of patent protection. If the technical features involved by the actor belong to the scope of patent protection, then the actor constitutes patent infringement. There are mainly the following manifestations: 1) The technical features involved by the actor are all the same as the patent, which constitutes infringement; 2) The actor involves more technical features than patents, which also constitutes infringement; 3) The technical features involved by the actor are the same as the patent, but different technical features are equivalent to the patent, which still constitutes infringement; Otherwise, it does not constitute infringement. The equivalence of technical features here means that ordinary technicians in this technical field can infer that two technical features have the same effect after being replaced with each other.
Analysis of patent infringement
A few days ago, the third revised draft of China's Patent Law (draft for review) was submitted to the State Council for deliberation. "Protection of patent right" is one of the main contents put forward by China National Intellectual Property Administration. With the rapid growth of patent applications, there has also been a problem that can not be ignored, that is, patent infringement disputes are increasing substantially. Therefore, the author thinks it is necessary to discuss patent infringement.
First, the form of patent infringement
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. This kind of patent infringement must meet two conditions: without the permission of the right holder, for the purpose of production and operation.
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.
Second, the principle of liability for patent infringement
According to the second paragraph of Article 63 of the Patent Law, the seller or user can be exempted from the liability for compensation only if the source is "unknown" and "legal", but it still constitutes infringement and should bear the responsibility of stopping the infringement and eliminating the influence. That is to say, for bona fide sellers or users, the principle of no-fault liability should be applied to stop the infringement and eliminate the influence, and the principle of fault liability should be applied to compensate. However, the application scope of this mixed principle cannot be extended to the act of manufacturing or importing patented products.
Fault is not a constituent element of patent infringement. When determining the tort liability of the actor, we should apply the no-fault liability to stop the tort liability, and apply the fault liability and the no-fault liability to compensate the losses according to different occasions. Different imputation principles can be applied to the same patent infringement to determine different civil liabilities, which should be said to be more reasonable than the traditional theory.
Three, the elements of patent infringement
The constitutive requirements of general civil tort liability usually include four aspects: illegal act, damage result, causal relationship between illegal act and damage result, and subjective fault of the actor.
For the tort liability of patent behavior, its constitutive requirements mainly include the following aspects:
(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.
Fourth, the legal consequences of patent infringement
When the patent right is infringed? No matter the patentee or the interested party, they can request the patent management authority to handle it, or they can bring a lawsuit to the court and handle it through judicial procedures. Among them? Administrative procedure is not final? The party concerned refuses to accept the administrative treatment? You can still bring a lawsuit to the people's court.
(1) Civil sanctions for infringement. Patent law mainly adopts civil sanctions for patent infringement? When the patent administration organ or the people's court handles the infringement? Mainly to order the infringer to stop the infringement and compensate for the losses. According to the relevant provisions of the general principles of civil law? Anyone without permission? For production and commercial purposes? Is there any patent infringement? The patentee or interested party may request to stop the infringement. Regarding the amount of compensation for patent infringement, Article 60 of the Patent Law stipulates: "The amount of compensation for patent infringement shall be determined according to the losses suffered by the obligee or the interests gained by the infringer due to infringement; If it is difficult to determine the loss of the infringer or the interests of the infringer, it shall be reasonably determined with reference to the multiple of the patent license fee. "Articles 20 and 21 of the Supreme People's Court's Several Provisions on the Applicable Law in the Trial of Patent Dispute Cases have also made relevant provisions. Besides? The patentee can't just claim compensation for economic losses? But also may require measures to restore the business reputation of the patentee.
(2) Administrative sanctions against infringement. The patent law stipulates administrative responsibilities for acts such as counterfeiting other people's patents, revealing state secrets, and engaging in malpractices for personal gain. Besides? Articles 58 and 59 of China's Patent Law also stipulate administrative liability for acts that infringe upon the legitimate rights and interests of inventors or designers.
(3) Criminal sanctions for infringement. According to patent law? Patent infringement mainly gives civil sanctions? But sometimes criminal sanctions are needed. Article 58 of the Patent Law clearly stipulates: "If a crime is constituted, criminal responsibility shall be investigated according to law".
In a word, patent infringement is a serious violation of the legitimate rights and interests of the patentee, and the infringer should bear corresponding responsibilities according to law. However, at present, the general public's awareness of patent protection is weak, and the patent administration authorities are also weak in dealing with patent infringement disputes, investigating patent violations and investigating and collecting evidence. Lu Yongxiang, vice chairman of the National People's Congress Standing Committee (NPCSC), clearly pointed out in his report: "To solve these problems, we must strengthen patent administrative protection according to law and give full play to the advantages of simple, fast and efficient patent administrative law enforcement." We have reason to believe that the third revision of the patent law will further improve China's intellectual property legal system, effectively curb patent infringement, and make China's patent system develop on a healthier track through continuous improvement of patent administrative law enforcement. (Xu Weifeng)
Case 1. Xingfa v Lv Feng, Fuyi, Yiwu.
Guangdong Xingfa Innovation Co., Ltd. and Guangdong Xingfa Aluminum Profile Factory Co., Ltd. filed a lawsuit with Hangzhou Intermediate People's Court against Yiwu Fuyi Building Materials Co., Ltd. and Guangdong Lv Feng Aluminum Co., Ltd.
According to the original statement, the defendant Fuyi Company sold a large number of counterfeit products, which seriously harmed the plaintiff's interests. These products are all produced by Feng Aluminum Company, and both of them should bear tort liability.
Feng Aluminum Company argued that: 1, the plaintiff's patent should be invalid; 2. The aluminum profile products produced by our company are obviously different from the plaintiff's patented products, which does not constitute patent infringement.
Fuyi Company did not submit the defense.
The court held through trial that: 1, the patent obtained by the plaintiff through transfer is a valid patent; 2. The profile produced by Feng Aluminum Company belongs to the same category as the patented product, except for two slight differences, which are basically consistent with the visible parts of the profile product in cross section. This difference is not easy for the average consumer to distinguish. Therefore, Feng Aluminum Company's manufacture of the above-mentioned profiles and the company's sale of the above-mentioned profiles all constitute an infringement of the plaintiff's patent right. 3. The plaintiff has no evidence to prove that Fuyi Company knowingly sells infringing products. According to the notarial certificate, it can be concluded that the infringing products sold by Fuyi Company are produced by Lv Feng Company, and Lv Feng Company may not be liable for compensation.
The final judgment is as follows: Feng Aluminum Company immediately stopped producing and selling infringing products and destroyed the molds for manufacturing infringing products; Fuyi Company immediately stopped selling infringement profiles; Feng Aluminum Company compensated the plaintiff for the economic loss of 80,000 yuan.
After the first trial, Lv Feng Company refused to accept the appeal, and the Zhejiang Higher People's Court ruled that the appeal was dismissed and the original judgment was upheld.
In case 2, an effective judgment with evidence to the contrary can be overturned.
Suzhou Shengzhijin Aluminum Co., Ltd. appealed to the Beijing Higher People's Court because it refused to accept the administrative judgment of Beijing No.1 Intermediate People's Court on a series of design patents that were invalid in this case.
Rope Gold Company is the patentee of 35 design patents named "Special-shaped aluminum frame 8604" (hereinafter referred to as "8604") No.98325657.8. In 2002, Hualian Company and other units and individuals applied to the Patent Reexamination Board to declare the patent invalid, arguing that the patent did not conform to the provisions of Article 23 of the Patent Law. After examination, the Patent Reexamination Board, based on the facts ascertained by the Higher People's Court of a province, believes that a product can only have one model for a period of time, and rope gold company has sold the products of this model before the application date, and that this series of patented products have been publicly sold before the application date. In 2003, an invalid decision was made to declare the patent right of design invalid. Rope Gold Company refused to accept the decision and filed an administrative lawsuit with Beijing No.1 Intermediate People's Court. Beijing No.1 Intermediate People's Court upheld the decision of the Patent Reexamination Board.
In the trial of the second instance, the focus of controversy among Rope Gold Company, Patent Reexamination Board and Hualian Company is whether the products publicly sold before the patent application date must be patented products, that is, whether the product shape corresponding to this model can be uniquely determined as the shape of the design patent product in dispute in this case. Both the Patent Reexamination Board and the court of first instance merged this case with other 1 1 cases. During the trial, the Patent Reexamination Board also accepted the civil judgment of Zhejiang Higher People's Court submitted by Hualian Company after the oral hearing, but rejected all the evidence submitted by Yuan Man business department boss and Luo Zongtao in favor of Rope Gold Company.
The key to this case is whether to adopt the evidence submitted by Luo Zongtao, the boss of Yuan Man Sales Department, in favor of Luosheng Gold Company. If the Patent Reexamination Board finds that the evidence is scattered and undated, it will not be accepted; The court of first instance tried the above evidence, but did not adopt it. After trial, the court of second instance held that in the administrative proceedings after the procedure of examining the invalidation of the Patent Reexamination Board, the new evidence presented by the invalid claimant was not accepted and recognized in principle, and the invalid claimant could re-submit the request for invalidation to the Patent Reexamination Board based on the new evidence. However, after the patent right is declared invalid or invalid, the new evidence put forward by the patentee in the subsequent procedure that may lead to the revision of the case shall be accepted and recognized. At this point, the decision of the Patent Reexamination Board shall be revoked and ordered to be reexamined. The court of first instance refused to accept the above evidence, which not only violated the relevant provisions of the Review Guide, but also seriously damaged the legitimate rights and interests of the patentee and was obviously unfair to Ropes Gold Company. The court of second instance conducted a comprehensive review of the source, submission method, time of appearance, relationship with other evidence, interest relationship between the two parties, industry common sense and practice, and previous patent application experience of Rope Gold Company, and confirmed that the evidence was objective, true, legal and effective and should be adopted.
The final judgment revoked the administrative judgment of Beijing No.1 Intermediate People's Court (2004) No.42 of Beijing Bank of China Zi Chu Zi; Revoke an invalid decision. Patent Reexamination Board of State Intellectual Property Office 5531; Maintain the patent right of design No.98325657.8 "Special-shaped aluminum frame 8604" valid.
Several acts that are not regarded as patent infringement by law.
Article 63 of the Patent Law stipulates that any of the following circumstances shall not be regarded as infringement of the patent right:
(1) After the patented product manufactured or imported by the patentee or manufactured or imported with the permission of the patentee or the product directly obtained according to the patented method is sold, the patentee uses, promises to sell or sells the product;
(2) Having manufactured the same product, used the same method or made necessary preparations for its manufacture and use before the patent application date, and continuing to manufacture and use it only within the original scope;
(3) Foreign means of transport temporarily passing through China's territorial waters and airspace use the relevant patents in their devices and equipment for their own needs in accordance with the agreements signed between their countries and China or international treaties to which they are both parties, or on the principle of reciprocity;
(four) the use of relevant patents for scientific research and experiments.
If the use or sale of a patented product that is not known to be manufactured or sold without the permission of the patentee or a product directly obtained by a patented method is used for production and business purposes, it shall not be liable for compensation if it can prove the legal source of the product.