According to the provisions of the patent law, patents in China can be divided into invention patents, utility model patents and design patents. Invention patents have been substantially examined, while utility model patents and design patents have not been substantially examined. As long as the form meets the requirements, a patent certificate will be issued.
Therefore, many large-scale utility model patents and design patents in China do not meet the essential requirements of the patent law. Within a period of time, if someone thinks that their utility model or design patent has been infringed, the court will ask the plaintiff to provide a patent evaluation report, otherwise the case will not be filed. Patent evaluation report is a report issued after searching and evaluating whether a patent meets the substantive requirements stipulated in the patent law. The essential elements mentioned here are mainly novelty, practicality and advancement. Of course, the law now clearly stipulates that there is no need to evaluate the patent right before prosecution.
Novelty, that is, the patent technical scheme has never been made public at home and abroad before the patent application, and no one has used it publicly (before the amendment of the patent law in 2008, novelty stipulated that it should be used and published publicly in China, and only published publicly abroad). The citation at this time not only requires that it can be compared with the patent, but also must be before the patent application.
Although the patent law stipulates that 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. But in many cases, the judges of the court have no background in science and engineering, so they can't make independent judgments on technical issues, or they are unwilling to make judgments on technical issues. If the technology is complicated, it is suggested that you can apply to the Patent Reexamination Board for patent invalidation. After accepting the case, the Patent Reexamination Board requests the court to suspend the trial, and the general court has priority.
It solves the problem of whether the patent is valid (there are many novelty problems). If the patent is still valid, the next step is to compare the plaintiff's patent with the defendant's product or technical solution. Many people compare the plaintiff's products with the defendant's products, which is wrong.
This comparison is not simply the same or different. The key is to see what are the technical features of the independent claim in Item 1 (sometimes including Item 2) of the plaintiff's patent claim, and whether the defendant's products and technical solutions include these technical features. If these technical features are included, although some technical features are different, they also constitute infringement. If all these technical features cannot be included, but some technical features are the same as the subordinate claims of this patent claim (generally item 2 below), it does not constitute infringement. Of course, there is the problem of equivalent replacement, but rewriting is more complicated.
Second, the process of patent application (a) the filling and writing of patent application documents
There are specific requirements for the filling and writing of patent application documents, and the applicant can fill in and write them by himself or entrust a patent agency to handle them on his behalf. Although it is not mandatory to entrust a patent agency, considering the importance of carefully writing patent application documents and the legal rigor of examination and approval procedures, it is worth promoting for applicants with little experience.
(2) Acceptance of patent applications
After receiving the patent application, the Patent Office's acceptance office or the Patent Office's agency shall determine the application date, give the application number and issue a notice of acceptance for the application that meets the acceptance conditions.
3. What evidence do you need to sue for infringement of design patents? (1) Evidence about the infringer.
As the saying goes, know yourself and know yourself. Therefore, the exact name, address, enterprise nature, registered capital, number of personnel and business scope of the infringer are all things that the patentee should know first. It is very important for the patentee to know what strategies to take to deal with patent infringement.
(2) Evidence of infringement facts.
The premise of patent infringement is that there must be infringement. Therefore, in the process of dealing with infringement, it is very important to prove that the infringer has indeed carried out the act of infringing the patent right. These evidences include physical objects, photos, product catalogues, sales invoices, purchase and sale contracts, etc.
(3) Evidence of damages.
The patentee may claim damages from the infringer. The amount of compensation claimed may be the loss suffered by the patentee. However, the patentee shall provide evidence to prove that the sales volume of his patented product has decreased, or the sales price has decreased, and other expenses have been overpaid or underpaid.
The amount of compensation claimed can also be the profits obtained by the infringer due to the infringement. The patentee shall provide evidence to prove the infringer's sales volume, sales time, sales price, sales cost and sales profit, etc. On this basis, the profits of the infringer are calculated.
To sum up, if the defendant ignores the infringement of the appearance patent, he can bear the corresponding infringement liability of the appearance patent according to the relevant provisions of Chinese laws and practical experience. The above is my introduction to the defendant's appearance patent infringement, hoping to help you.