For invention and utility model patents, there are two elements that constitute infringement: formal conditions and substantive conditions.
The formal requirements include: the implementation behavior ① involves a valid China patent; (2) Without the permission or authorization of the patentee; ③ For the purpose of production and operation. It does not include whether the actor has subjective intention, but it can be used as a basis for measuring the seriousness of the plot.
The basic element is technical conditions. There are mainly the following manifestations: the technical characteristics involved by the actor are all the same as those of the patent, which constitutes infringement; (2) exceeding the technical characteristics of the patent also constitutes infringement; ③ There are similarities and differences with the technical features of the patent, but different technical features are equivalent to the technical features of the patent and still constitute infringement; Otherwise, it does not constitute infringement.
With regard to design patents, Article 24 of the Patent Law stipulates that after a design patent is granted, no unit or individual may exploit the same or similar design patent in production and operation without the permission of the patentee, unless otherwise stipulated by laws and regulations. The approximation mentioned in the preceding paragraph means that there is no substantial difference in overall visual effect between infringing design and authorized design.
Legal liability of infringement: According to the law, the legal liability of patent infringers includes civil liability, administrative liability and criminal liability.
(1) administrative responsibility. For patent infringement, the administrative department for patent affairs has the right to order the infringer to stop the infringement, order it to correct, and impose a fine. The administrative department for patent affairs may also mediate the amount of compensation for patent infringement at the request of the parties concerned.
(2) Civil liability. ① Stop the infringement ② Compensate for the loss ③ Eliminate the influence.
(3) criminal responsibility. In accordance with the provisions of the Patent Law and the Criminal Law, if the circumstances are serious, the person directly responsible shall be investigated for criminal responsibility.
Amount of tort compensation
The revised Patent Law in 2009 clearly stipulates the way to determine the amount of compensation for patent infringement, which is divided into four levels:
The first level is determined according to the losses suffered by the patentee due to infringement.
The second level, if the loss cannot be determined, is based on the interests that the infringer has gained because of the infringement.
At the third level, if the losses and gains cannot be determined, they shall be determined reasonably according to the multiple of the patent license fee.
At the fourth level, if it is difficult to determine the losses, benefits and royalties, the compensation will be 1 10,000 to 1 10,000 yuan according to the type of the patent and the nature and circumstances of the infringement. This 1- 1 10,000 yuan is also called legal compensation. Before the amendment of the patent law in 2009, the upper limit of this amount was 500,000 yuan.