(1) The parties can negotiate on their own, which can reduce the probability of intensification of contradictions and solve disputes at the lowest cost.
(2) The manpower and financial resources invested by the parties in dispute settlement can be appropriately reduced.
(3) Negotiation may be the most effective way to solve the problem.
2. Request the patent administration department for mediation.
1. There are many channels to solve patent disputes. China's patent law stipulates that the patent administration department shall conduct negotiation, litigation and mediation.
(1) negotiation. 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.
The administrative department for patent affairs may handle patent infringement disputes, and if 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).
Where a patent infringement dispute involves an invention patent of a new product manufacturing method, 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 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.
The administrative department for patent affairs may also, at the request of the parties concerned, dispute the ownership of the right to apply for a patent and the qualification of the inventor or designer; Disputes over rewards and remuneration of inventors and designers of service inventions; Disputes over the use of inventions after the publication of an application for a patent for invention and before the grant of the patent right, without paying an appropriate fee (which should be raised after the grant of the patent right) and other patent disputes shall be mediated.
Second, matters needing attention in handling patent disputes
1, patent disputes can be mediated.
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).
2. If you are dissatisfied with the decision of the patent administration department, you can bring a lawsuit.
The administrative department for patent affairs may handle patent infringement disputes, and if 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.
3. 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.
4. Calculation method of damages
(1) The amount of compensation shall be determined by the losses suffered by the patentee due to infringement or the benefits gained by the infringer due to infringement;
The losses suffered by the obligee due to infringement can be calculated by multiplying the total sales volume of the patented product of the patentee due to infringement by the reasonable profit income of each patented product.
If it is difficult to determine the total sales reduction of the right holder, the product of the total number of infringing products sold in the market multiplied by the reasonable profit of each patented product can be regarded as the loss suffered by the right holder due to infringement.
The benefits obtained by the infringer due to infringement can be calculated by multiplying the total number of infringing products sold in the market by the reasonable profit income of each infringing product. The benefits obtained by the infringer due to infringement are generally calculated according to the operating profit of the infringer, and can be calculated according to the sales profit for the infringer who is completely engaged in infringement.
(2) The loss of the infringer or the interests of the infringer are difficult to determine, and if there is a patent license fee, the compensation amount shall be reasonably determined with reference to 1 to 3 times of the patent license fee.
(3) In the case that it is difficult to determine the losses of the infringed or the benefits gained by the infringer, and there is no patent license fee to refer to, or the patent license fee is obviously unreasonable, according to the types of patent rights, the nature and circumstances of the infringer's infringement and other factors, the amount of compensation is generally determined to be between RMB 5,000 yuan and RMB 300,000 yuan, with the maximum not exceeding RMB 500,000 yuan.
legal ground
patent law of the people's republic of china
Article 65 Where a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, 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).