Patent

Dry goods | Summary of types of patent non-infringement

According to the provisions of Article 11 of the Patent Law: After a patent right for inventions and utility models is granted, no unit or individual may implement its patent without the permission of the patentee unless it is otherwise stipulated in this Law Purpose To manufacture, use, promise to sell, sell, import its patented products, or use its patented methods and use, promise to sell, sell, and import products directly obtained under the patented method. After the design patent right is granted, no unit or individual may implement its patent without the permission of the patentee, that is, it may not manufacture, sell, or import its design patent product for the purpose of production and operation.

How to judge non-infringement, which categories are specifically classified?

According to the provisions of Article 69 of the Patent Law: any of the following circumstances shall not be considered as a patent infringement:

(1) A patented product or a product directly obtained in accordance with a patented method is used, promised to be sold, sold, or imported after the patentee or its licensed unit or individual has sold it.
(2) Those who have manufactured the same product, used the same method, or made the necessary preparations for manufacturing and use before the patent application date, and only continue to manufacture and use it within the original scope.
(3) Foreign transportation vehicles that temporarily pass through China ’s territorial waters, territorial waters, and territorial airspace, in accordance with the agreements signed by their affiliated countries with China or the international treaties they jointly participate in, or in accordance with the principle of reciprocity, in their installations and facilities Related patents.
(4) The patent is used exclusively for scientific research and experiments.
(5) In order to provide the information required for administrative examination and approval, those who manufacture, use, or import patented drugs or patented medical devices, and those that manufacture or import patented drugs or patented medical devices specifically for them.

① Exhaustion of rights: The patentee can make a profit by making, importing, or selling the patented product manufactured or imported by others, and the rights of the right holder have been realized, and the right holder should not repeatedly obtain the same product. Profit.

② Right of prior use: The act of implementing or preparing to implement a patented technology before the patent application is called prior use. Prior use generates prior use rights, which can counter patent rights. The reason for this is that the person who applies for and obtains the patent right is not necessarily the person who first made the invention or the person who first implemented the invention. Before the patentee submits his patent application, someone may have researched and developed the same invention and created it, or has already implemented or is preparing to implement it. Such a person is called a prior user. In this case, if the first user is prohibited from continuing to implement the invention after the patent is granted, it is obviously unfair, and it will cause a waste of social resources. Therefore, it is necessary to restrict the rights of patent rights.

③ The use of patents on foreign vehicles in transit: The means of transportation are in constant motion, and the patented technology used on the means of transportation requires patent protection, which may restrict the transportation of vehicles to certain areas and affect the freedom of international transportation. At the same time, because the time for transportation vehicles to enter certain regions is very short, it is difficult to provide patent protection for the patented technology used in actual operations.

④The use of patents for scientific research and experimental purposes: The reason for this provision is that scientific and technological innovations always need to be carried out on the basis of the original technology. If the relevant patents are used for scientific research and experimental purposes, patents must be obtained The permission of the right holder may prevent others from carrying out research and development and violate the provisions of Article 1 of the Patent Law.

⑤In order to provide the information required for administrative examination and approval: including manufacturing, using and importing patented medicines or patented medical devices, as well as those specially manufactured and imported for them. Drugs or medical devices are related to public health, and all countries implement strict approval systems for placing them on the market, and the approval time is longer. In order to pass the approval, the manufacturer must conduct a series of activities such as research, analysis and clinical trials to obtain the data and other information required for approval.

What kind of infringements can not be liable for compensation?

According to Article 70 of the Patent Law:

The use, promised sale or sale of a patent-infringing product that is not known to have been manufactured and sold without the permission of the patentee for production and operation purposes can prove the legal source of the product and shall not be liable for compensation.

Interpretation of Article 70 of the Patent Law: The use, promise to sell, or sale of a patent-infringing product that has not been known to be manufactured and sold without the permission of the patentee for the purpose of production and operation and can prove that the product has a legal origin Infringement, but considering that this behavior is non-malicious, it is stipulated not to bear "compensation liability". According to the provisions of this article, an infringer who is not liable for compensation should be able to prove: First, I really do not know that the product I use, promise to sell or sell is a patent infringing product; second, the product has a legitimate source.

It should be noted that the situation stipulated in this article is still an act of infringement of patent rights, and the law is exempted from liability for compensation only for its acts in good faith. At this time, the infringer should immediately stop the infringement, otherwise it will constitute intentional infringement and shall bear the responsibility for infringing the patent rights of others according to law.

The above is the author's summary of the types of patent non-infringement, there are related questions and insights, welcome to discuss!
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