How to understand the use behavior for the purpose of production and operation

Q: Without the permission of the patentee, does it constitute infringement for others to use the fence outside the factory to enjoy the patent for utility model? A: Article 11 of the Patent Law stipulates that after the patent right for invention and utility model is granted, unless otherwise stipulated, no unit or individual may exploit its patent without the permission of the patentee, that is, it shall not manufacture, use, promise to sell, sell or import its patented product for production and operation purposes, nor shall it use its patented method and use, promise to sell, sell or import the product directly obtained according to the patented method. It can be seen that the patent law prohibits the use for the purpose of production and operation. The key to answer this question lies in the nature of behavior, that is, whether behavior constitutes "use" behavior prohibited by law. First of all, the use behavior in the sense of patent law is defined: first, the use behavior of patented products refers to the application of the technical functions of patented products, including the direct use of patented products to obtain the effects they can produce, the use of patented products as other products, and the production of patented products as parts. In any case, the core of use lies in "realizing the technical functions of patented products". Second, the "use" of inventions and utility models must be aimed at production and operation. In practice, there are two kinds of behaviors that belong to non-commercial purposes: one is to use related patents exclusively for scientific research and experiments; Second, citizens have personal hobbies and need to implement relevant patents. Regarding the second point, it is limited to the individual behavior of citizens. Article 94 of the Opinions of the Beijing Higher People's Court on Several Issues Concerning the Determination of Patent Infringement (Trial) clearly stipulates that: if a unit manufactures or uses other people's patented products without permission, it cannot defend the infringement for non-business purposes and should bear the tort liability. At the same time, it should be noted that the purpose of operation is not to make profits, but is different from the purpose of making profits. Even the consumption behavior of the unit belongs to business behavior. Thirdly, according to the provisions of the patent law, it is not forbidden to use the design patent without the permission of the patentee. This distinction is made because compared with inventions and utility models, the protected objects are quite different in nature. The object of patent protection for invention and utility model is the technical scheme, which takes the technical performance or function of the product as the value; The object of appearance design is the appearance of the product, and what is important is the pleasing visual experience brought by the appearance of the product. Therefore, in most cases, the use of design is not for the purpose of production and operation, which is why the use of design is not prohibited. As far as guardrails are concerned, the protective belts on both sides of highways, expressways and bridges beside highways are mainly used as guardrail nets, and can also be used for the safety protection of airports, ports and docks, the isolation protection of parks, lawns, zoos, lakes, roads and residential areas in municipal construction, and the protective and decorative products of hotels, hotels, supermarkets and entertainment places. It can be seen that the fence has two functions: from the practical point of view, it plays the role of protection and isolation; Aesthetically, it can also play a decorative role. For the utility model patent of fence, the key point is to protect it and realize the practical function of protection and isolation. From the above analysis, it can be seen that others can constitute the "use" behavior prohibited by the patent law as long as they meet the following two points: first, the purpose of others' use is to realize the technical functions of the fence, that is, the key point is to realize the technical functions recorded in the utility model such as isolation and protection; Second, the use of others is not for the purpose of production and operation, that is, it cannot be the use behavior of individual citizens for life needs, and the use behavior of units cannot be defended for non-business purposes.