I. Determination of Intellectual Property Infringement
(1) Infringed intellectual property rights must be valid.
This requirement requires that the infringed intellectual property rights must be applied in China and verified and approved by China National Intellectual Property Administration. The validity period of intellectual property rights shall not expire, nor shall it be an application that has not been approved, or an application declared invalid by the reexamination board of the Intellectual Property Office. If it does not have the above effect, the lawsuit of intellectual property infringement cannot be carried out.
(2) Tort must be clearly defined.
This requirement means that the plaintiff must explain the infringer's behavior in detail and provide sufficient evidence to prove the occurrence of the infringement. In fact, China's relevant laws on intellectual property rights have stipulated this requirement in detail, and pointed out the types of infringement and events that cannot be counted as infringement.
(three) the infringement must be for profit, and the infringement that is not for profit should be determined according to the situation.
According to the regulations, if the intellectual property is used for profit, the user must obtain the permission of the owner, otherwise it will constitute infringement of intellectual property rights. Therefore, for-profit is also one of the main elements of intellectual property infringement.
(four) the occurrence of infringement must be caused by the subjective fault of the infringer.
This requirement holds that no matter whether the infringer's subjective fault is intentional or his own fault, he should be responsible for the loss of intellectual property rights. If the infringer can prove the legality of this act, he may not be liable for compensation, but he still needs to bear the civil liability for stopping the infringement and destroying the infringing products.
Second, the defense of intellectual property infringement
(a) the relevant departments should clearly know whether they are qualified to be the obligee of intellectual property rights, so the legal department needs to carry out technical certification on the plaintiff's subject qualification, and if it finds that it does not meet the subject qualification, it shall withdraw the lawsuit.
(2) Clarify the effective protection period of the accused intellectual property. Generally speaking, intellectual property rights have a certain time limit. For example, the patent law stipulates that the protection period is between 10 and 20 years, counting from the date of patent application.
(3) Clarify the limitation of intellectual property litigation. China's intellectual property law also clearly stipulates that the limitation period of intellectual property litigation is two years, which is counted from the day when the right holder knows or should know that his rights have been infringed. If the statute of limitations exceeds two years, the court will no longer accept such infringement and the plaintiff will lose the right to sue.
(4) Clarify the scope of application of intellectual property law, mainly by applying for intellectual property protection. Under normal circumstances, both parties need to submit an application for intellectual property protection, and relevant departments need to effectively verify and compare the intellectual property submitted by both parties to determine whether the intellectual property rights owned by both parties are the same or similar. At the same time, it is also necessary to know in time whether the intellectual property applications of both parties contain restrictive clauses, so as to clearly define the scope of intellectual property rights owned by both parties, and finally define a series of contents in the protection application to determine whether it constitutes intellectual property infringement.
(five) the use of well-known technology to defend. The so-called well-known technology means that it has been published in domestic and foreign publications or made known to the public by other means before the patent application date.
(6) make full use of various rights to defend. China's patent law clearly stipulates that although some units are not patentees, they can't be regarded as infringement because they have obtained certain licensing rights and used this knowledge to manufacture related products, and the patentee has no right to appeal.
(7) Obtaining defense through legal channels. China's patent law also has a very clear explanation, that is, if the defendant does not know the specific matters, it should be regarded as a bona fide third party, which is not a real infringement and should be protected by law. This legitimacy essentially refers to all the manufacturing of the defendant. The sales and service links all follow the relevant provisions of the law, which can prove that the obtained property has a legitimate source, so it cannot be considered as infringement. In addition, the defendant can also use temporary transit, scientific research purposes and compulsory license to safeguard his rights and defend himself.
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