Article 68 of the Patent Law stipulates: "The limitation period for patent infringement is two years, counting from the date when the patentee or interested party knows or should know about the infringement."
However, the starting point of the limitation of patent infringement litigation has two special circumstances:
1, the prosecution of patent infringement for more than two years is often continuous, sometimes even intermittent.
If the patentee has not claimed his rights within two years since he knew or should have known that he was infringed, and the infringement continues after two years, it is obviously unfair not to protect the patentee at this time. The patentee's right of claim can be divided into the right of claim for real right and the right of claim for creditor's rights. The former refers to stopping the infringement, but from the purpose of the prescription system, this right of claim itself is not limited by the statute of limitations; The latter refers to compensation for losses, of course, the limitation of action applies, but the amount of compensation for infringement losses calculated forward from the date when the patentee files a lawsuit with the people's court is still within the limitation of action.
2. Cost of using invention technology before authorization One of the characteristics of invention patents is temporary protection before authorization.
As the invention patent is subject to "pre-publication and substantive examination", the application for invention patent is published within 18 months from the date of application. At this time, other units or individuals can completely implement the disclosed invention technology, and this behavior is not regarded as infringement before authorization. According to the regulations, units or individuals should pay appropriate fees, which is a temporary protection measure for invention applications. The limitation of action has two starting points: the second is the date of patent authorization; Second, the patentee knows or should know the date of the act, and the latter is the actual starting point.