It does not have the novelty required for patent rights. Comments First of all, according to the patent law, inventions and utility models granted patent rights should possess novelty, creativity and practicality, that is, the three properties of patents. Among them, novelty means that before the filing date, the same invention or utility model has not been published in domestic or foreign publications, publicly used domestically or otherwise known to the public, and there is no source of the same invention or utility model. Others have filed an application with the Patent Office and it is recorded in the patent application documents published after the filing date. Creativity means that the invention has outstanding substantive features and significant progress compared with the technology existing before the filing date, and the utility model has substantive features and progress. Practicality means that the invention or utility model can be manufactured or used and can produce positive effects. The above "three properties" must be met at the same time before the applicant can obtain patent rights. Secondly, the key to this case is whether the energy-saving electromagnet technology is novel. The criterion for judging whether an invention is novel is whether it is disclosed or not. Our country adopts the principle of combining world novelty with domestic novelty. For written (publication) disclosure, my country adopts world novelty, that is, it has not been publicly published at home or abroad before the filing date; for use disclosure or other forms of disclosure (such as oral) disclosure, the domestic novelty standard is adopted. The main reason for adopting different standards is that it is difficult to find out whether the invention or utility model has been publicly used or disclosed in other ways abroad before the filing date. Judging from the public date, my country uses the filing date as the dividing line. An invention-creation is novel as long as no identical invention-creation has been disclosed before the filing date. In this case, a certain research institute has sufficient evidence to prove that the factory's utility model patent has been disclosed before the filing date, and has been publicly published and used domestically. If it is not permitted by the patent law, it will not be considered as a loss of novelty. Due to the nature of the situation, the factory’s technology is not novel and cannot be granted a patent. Thirdly, the patent rights already granted by the Patent Office are not irreversible. The patent office has limited personnel, and it is impossible to be familiar with all technical fields and read all public magazines. Because of this, the Patent Law has specially established two systems to correct possible errors. One is the patent revocation system. Within six months from the date when the Patent Office announces the grant of a patent right, any unit or individual who believes that the grant of the patent right does not comply with the regulations may request the Patent Office to revoke the patent right. The Patent Office will examine the request to revoke the patent right, make a decision to revoke or maintain the patent right, and notify the requester and patentee. The other is the patent invalidation system. Six months after the Patent Office announces the grant of a patent right, any unit or individual that believes that the grant of the patent right does not comply with the regulations may request the Patent Reexamination Board to declare the patent right invalid. The Patent Reexamination Board examines the request to declare the patent right invalid, makes a decision, and notifies the requester and the patentee. In this case, a certain research institute filed a request six months after the patent right of a certain factory was granted, requesting that the patent right be declared invalid. The evidence was conclusive and met the circumstances for declaring the patent right invalid. Finally, the Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and copies of relevant documents to the patentee, requiring it to state its opinions within a specified time limit. The patentee may modify the patent documents, but shall not expand the protection of the original patent. scope; failure to respond within the time limit will not affect the Patent Reexamination Board’s proceedings. 7. Anti-Unfair Competition Law 1. Case introduction The "Happiness" brand nutritional liquid produced by A Food Factory was very popular among consumers. In 1999, A Food Factory registered the "Happiness" trademark. In 2000, Food Factory A and Food Factory B signed a trademark licensing contract, allowing Food Factory B to use the registered trademark "Happiness". After the license to use the "Happiness" trademark expired, Factory B slightly modified its nutrient solution formula and registered the "Fukang" trademark. In order to quickly enter the market for its products, Factory B used advertising to claim that "Fukang" nutrient solution is a replacement product of "Happiness" nutrient solution and an improvement on "Happiness" nutrient solution. After the advertisement was released, consumers believed that "Fukang" nutrient solution was a new generation product and must be more advanced than "Happiness" nutrient solution, so they switched to buying "Fukang" nutrient solution, causing Factory A's products to become unsalable and causing economic losses. huge. After Factory A learned of this situation, it reported to the industrial and commercial administration authorities and requested that Factory B’s behavior be stopped and Factory B compensated.
Questions: 1. How should the industrial and commercial administration handle this case? 2. Are the requirements of Food Factory A correct? Case Analysis 1. The commercial administrative agency should order Factory B to stop broadcasting or publishing advertisements and eliminate the impact, and at the same time impose a fine according to the circumstances. In order to open up the market, Factory B uses advertising to make consumers mistakenly believe that Factory B's products are new generation products, causing Factory A's products to be unsaleable. The "Anti-Unfair Competition Law" stipulates that "operators shall not use advertising or other methods to make misleading and false propaganda about the quality, ingredients, performance, uses, producers, expiration dates, origins, etc. of goods." Based on the above facts and legal provisions, Factory B’s behavior constitutes unfair competition. The industrial and commercial administrative authorities may, in accordance with the provisions of the Anti-Unfair Competition Law, order Factory B to stop broadcasting or publishing advertisements, explain the truth through various channels, and eliminate The impact of false advertising shall be subject to a fine of not less than RMB 10,000 but not more than RMB 200,000 depending on the circumstances. 2. Factory A’s request is correct and Factory B can be asked to compensate for the losses. The Anti-Unfair Competition Law stipulates: “If an operator violates the provisions of this law and causes damage to the infringed operator, he shall bear liability for damages. If the infringed operator’s loss is difficult to calculate, the amount of compensation shall be the amount of the infringer’s infringement. The profit gained from the infringement during the period; and shall bear the reasonable expenses paid by the infringed operator for investigating the operator’s unfair competition behavior that infringes upon its legitimate rights and interests.” According to the above legal provisions, Factory A has the right to demand compensation from Factory B. loss. If it is difficult to calculate the amount of losses suffered by Factory A, the profits gained by Factory B due to the infringement during the infringement period can be the amount of compensation. If Factory A pays reasonable expenses for investigating Factory B’s infringement, these expenses shall be borne by Factory B. 2. Advertising infringement Case introduction: On January 22, 1994, Xi'an Hansenzhai Supply Station commissioned an advertising company to plan an advertisement to promote the washing powder it distributed, and then contacted a newspaper to publish it. The advertisement reads: "Hansenzhai Supply Station recommends to users across the province the use of high-quality domestic products such as Vitality 28 Laundry Powder, Yi Zhihua Laundry Powder, and Weike 88 Laundry Powder. After use, it will save you money, water, and electricity." Hansenzhai Supply Station reminds you not to use colored washing powder. Our domestic products have always been among the best in the world. "The Shandandan brand washing powder produced by Xi'an Daily Chemical Company is pink and has been rated as national excellent for many years. , a high-quality product. From 1991 to 1993, the sales volume of Shandandan brand laundry detergent has remained above 20,000 tons. In 1994 it dropped to 15,000 tons. Question: Does the advertisement of Hansenzhai Supply Station constitute infringement? If not, why? If so, who should bear legal responsibility? Case Analysis 1. The advertisement of Hansenzhai Supply Station has constituted infringement. Because the advertisement at Hansenzhai Supply Station disparaged the quality of Shandandan brand washing powder produced by Xi'an Daily Chemical Company, people misunderstood that the quality of colored washing powder was not good. Hansenzhai Supply Station violated the Advertising Law and the Anti-Unfair Competition Law and harmed the economic interests of Xi'an Daily Chemical Company. Hansenzhai Supply Station and the advertising company should be ordered to stop publishing, make public corrections, confiscate advertising fees, and impose an advertising fee of 1 A fine of more than 5 times but not more than 5 times shall be imposed. And compensate Hansen Company for its economic losses. 8. Product Quality Law 1. Responsibility for products not put into circulation Case introduction: In order to express condolences, a company distributed a batch of self-produced washing machines that passed inspection but were not put into circulation as welfare to its employees before the Chinese New Year. Employee A was very happy after receiving the washing machine distributed by the factory and took the washing machine home. As Wife B was here, I asked her to help use the washing machine to wash the sofa covers at home. As a result, B was electrocuted to death on the spot due to leakage from the washing machine, so A filed a lawsuit with the People's Court. Questions: 1. If A sues the company, can he win the case? Why? Case Analysis Article 29 of my country's "Product Quality Law" stipulates: "If a defect in a product causes damage to a person or other property other than the defective product (hereinafter referred to as other people's property), the producer shall bear liability for compensation.
The manufacturer will not be liable for compensation if it can prove that one of the following circumstances exists: (1) The product has not been put into circulation (2) The defect causing the damage did not exist when the product was put into circulation (3) The defect caused the damage when the product was put into circulation In this case, where the scientific and technological level cannot yet detect the existence of defects, the product has not yet been put into circulation, so the producer is not liable for compensation. However, neither A nor B is at fault. Therefore, the people's court can, based on the principle of fairness in civil law, rule that the enterprise should compensate A appropriately. 9. Cases of the "Consumer Rights and Interests Protection Law" 1. The validity of the operator's disclaimer Case introduction: In November 1994, Zhang participated in a clothing exhibition sponsored by Fanchen Textile Co., Ltd., and in the exhibition No. 12 Bojia Leather Coat In front of the counter of the factory, Zhang saw a fur coat priced at 2,100 yuan. It was fashionable and he decided to buy it. When Zhang was choosing clothes, he saw a notice on the counter that read "Inspection in person, no returns or exchanges". Zhang wore the clothes immediately after buying them, but unexpectedly, 10 days later, when Zhang was oiling the leather clothes, he found that the outer skin was peeling off, and the spots on the leather clothes were very ugly. Zhang immediately took the clothes to the exhibition and asked for a return or exchange, but The exhibition has ended and the personnel of Bojia Leather Factory have evacuated. Zhang was very angry and called the TV station to report that there was a problem with the quality of the products of Bojia Leather Clothing Factory. The news media exposed the matter and the sales of leather clothes of Bojia Leather Clothing Factory dropped significantly. The Bojia Leather Clothing Factory filed a lawsuit in court, claiming that when selling the leather jackets, the factory had stated that "it will be inspected in person and will not be returned or exchanged." Zhang also knew that he still purchased the leather jackets, indicating that he agreed to be responsible for the quality risks of the leather jackets. Now Zhang's behavior has violated the reputation of the factory, and Zhang is required to eliminate the impact, apologize, and compensate for economic losses. During his defense, Zhang submitted to the court a certificate issued by the Commodity Inspection Department proving that the leather jacket purchased by Zhang was of unqualified quality. Question: 1. Is Bojia Leather Factory’s notice of “face-to-face inspection, no returns or exchanges” valid? Why? 2. Is it true that Bojia Leather Factory believes that Zhang has violated the factory’s reputation rights? Why? 3. Does Zhang have the right to claim compensation from Fanchen Textile Co., Ltd. regarding the quality of his leather clothing? Case Analysis (1) Bojia Leather Clothing Factory’s notice that “no returns or exchanges will be accepted upon face-to-face inspection” is invalid. "Inspection in person, no returns or exchanges" is both an overbearing clause and an exemption clause. The leather garment factory exempts itself from responsibilities and increases the responsibilities of consumers. Such an exemption clause is invalid. (2) Zhang’s behavior does not constitute infringement because the quality of the leather jackets purchased by Zhang is unqualified is an established fact and not false. The leather jacket factory violates the product quality law by selling unqualified products as qualified products. The media said this Exposing the matter is not an infringement. (3) Zhang has the right to claim compensation from Fanchen Textile Company. According to the "Consumer Rights Protection Law", if there are quality problems with the goods purchased by consumers at the trade fair, if the trade fair ends, the consumer has the right to claim against the counter lessor or the trade fair. The organizer requested compensation. 2. Supermarket searches customers for infringement. Case introduction: When Zhang was shopping in a supermarket, he looked at several bottles of cosmetics and felt dissatisfied, so he put them on the shelf. When leaving the supermarket, the security personnel of the supermarket suspected that Zhang had taken cosmetics without checking out. They stopped Zhang and forcibly searched Zhang. They also opened Zhang's bag for inspection. Since no cosmetics were found, the security personnel immediately searched Zhang. An apologized and explained: "We have regulations in our store. Since supermarkets use open-shelf sales, things will inevitably be lost. Therefore, security personnel are required to strengthen management. Security personnel have the right to search people suspected of stealing. This regulation is in the mall. A notice was posted at the door. "Zhang believed that the mall had violated her personal rights and reputation, and filed a lawsuit with the People's Court, demanding an apology from the supermarket and compensation for losses. Questions: 1. Did the supermarket infringe on Zhang’s rights? 2. The security guard of the supermarket immediately apologized to Zhang. Is the supermarket responsible for compensation to Zhang? Case Analysis 1. According to the provisions of the "Consumer Rights and Interests Protection Law", consumers have the right to have their personal and property safety not harmed when purchasing and using goods or receiving services, and have the right to have their personal dignity and national customs and habits respected. For operators, operators shall not make unfair or unreasonable provisions for consumers through standard contracts, notices, statements, store notices, etc., or reduce or exempt them from civil liability for harming the legitimate rights and interests of consumers.
According to the above regulations, the shopping mall has no right to search Zhang’s belongings. Although the supermarket has a notice in advance, the notice has no legal basis and is not protected by law. Therefore, the supermarket violated Zhang's personal rights, reputation rights, rights to maintain safety and rights to ensure safety. 2. Although the security personnel of the supermarket immediately apologized to Zhang, this cannot change the fact that the supermarket violated Zhang’s rights. According to the provisions of the Consumer Rights Protection Law, the supermarket should stop the infringement, restore its reputation, eliminate the impact, apologize, and compensate for losses. According to the "Consumer Rights Protection Act"