I. Elements of Patent Infringement of Utility Model
(1) The object of infringement shall be a valid patent with a patent right in China. That is, first of all, it is a patent in China, not in the United States, Japan or other countries, because patents are regional, and patents obtained according to the laws of a country or region can only be effective and protected in that country or region. Secondly, the patent is valid. In China, the validity period of invention patents is 20 years, and the validity period of utility models and designs is 10 years. Only during the protection period can the patentee enjoy the exclusive right. If the validity period expires, the invention will enter the field of * * *, and anyone can implement it, so there is no patent infringement problem. In addition, if a patent is revoked or declared invalid for other reasons, the patent is regarded as nonexistent, so even if it is implemented by others, it is not enough to constitute patent infringement.
(2) there are illegal acts. That is, the actor has the behavior of exploiting the patent for profit without the permission of the patentee. However, it should be noted that Article 63 of China's Patent Law stipulates five acts that are not regarded as infringement, including:
1. After the patented product manufactured or imported by the patentee or the product directly obtained by the patented method is sold, the patentee uses, promises to sell or sells the product;
__2. Having manufactured the same product, used the same method or made necessary preparations for manufacture and use before the patent application date, and continuing to manufacture and use it only within the original scope;
3. According to the agreement signed between the country and China, or the international treaties to which * * * is a party, or according to the principle of reciprocity, foreign means of transport temporarily passing through the territory, territorial sea and airspace of China use the relevant patents in their devices and equipment for their own purposes;
4. Dedicated relevant patents to scientific research and experiments;
5. Anyone who uses or sells a patented product that is not known to be manufactured or sold without the permission of the patentee, or a product that is directly obtained by a patented method for the purpose of production and operation, shall not be liable for compensation. The above five points are exceptions to patent infringement liability. If the actor can't use this as a defense, he shall be deemed to constitute patent infringement and bear the responsibility according to law.
(3) The actor is subjectively at fault. The subjective fault of the infringer includes intention and negligence. Intention refers to the behavior of the actor who knows that his behavior is an act of infringing others' patent rights. The infringer knowingly manufactures a product for the purpose of production and operation without permission; The so-called negligence refers to the behavior that the actor infringes the patent right of others because of negligence or overconfidence. The act of using or transferring an invention-creation without knowing that it is the same as an invention-creation for which a patent right has been granted. In the handling of patent infringement disputes, the principle of tort liability is whether the actor is subjectively at fault, but there are exceptions. For example, the second paragraph of Article 63 of the Patent Law stipulates that even if the actor is not subjectively at fault, it also constitutes patent infringement, but he is not liable for compensation.
(4) Generally speaking, production and operation should be the goal. Article 1 1 of China's Patent Law stipulates that, after an invention is granted a patent right, no one may exploit the patent unless otherwise provided in this Law, and the exploitation shall not be for the purpose of production and operation. Therefore, the purpose of production and operation should also be one of the constitutive requirements for judging patent infringement. In addition, regarding the damage result, there is no requirement that there must be actual loss in patent infringement. Because the loss suffered by the obligee is an abstract concept, including both direct loss and indirect loss. The former is manifested as direct economic loss and mental rights damage, and also includes the direct expenses paid by the right holder to stop the infringement. The latter is manifested in the reduction of the expected reasonable income of the obligee, which is usually called the available interest.
Second, the classification of patent infringement
Patent infringement can be divided into direct infringement and indirect infringement.
Direct infringement. This refers to the act of infringing others' patent rights directly implemented by the actor. Its manifestations include: the act of manufacturing patented products of inventions, utility models and designs; The act of using patented products of inventions and utility models; The act of promising to sell patented products of inventions and utility models; The act of selling patented products of inventions, utility models or designs; The act of importing patented products of inventions, utility models and designs;
Use patented methods and use, promise to sell, sell or import products directly obtained according to patented methods;
Indirect infringement. This means that the actor's own behavior does not directly constitute an infringement of the patent right, but he has induced, encouraged, abetted and helped others to infringe the patent right. Indirect infringement usually creates conditions for direct infringement, and the common manifestations are: the actor sells parts of patented products, molds specially used for implementing patented products or machinery and equipment used for implementing patented methods; An act in which an actor transfers his patented technology without the authorization or entrustment of the patentee.
The above article introduces in detail the relevant contents of "What are the constitutive elements of utility model patent infringement". The constitutive requirements of utility model patent infringement are that the object of infringement should be a valid patent with a patent right in China. If there is an illegal act, the actor is subjectively at fault, and the general purpose should be production and operation.