How To Define The Patent Infringement?

Who will define infringement?

When a patent holder infringes upon his patent right, he may consult with the infringer. If he does not want to negotiate or fail to negotiate, he may bring a suit in a people's court, or he may request the patent administrative department to deal with it.

That is to say, the people's court and the patent administration department define the infringement, not the State Intellectual Property Office.

For inventions and utility models, there are two aspects to constitute infringement: formal and substantive conditions.

The formal requirements include: the act of implementation involves an effective one.

The essential condition is the technical condition.

There are mainly several forms of expression: the technical characteristics involved by the perpetrator and the technical characteristics of the patent are all the same, which constitute infringement; second, the technical characteristics over the patent also constitute infringement; third, the technical characteristics of the patent are the same and different; however, the technical characteristics of the difference are equivalent to the technical characteristics of the patent, and still constitute infringement; otherwise, it will not constitute infringement.

For the patent for design, the twenty-fourth provision of the patent law stipulates that after the grant of the patent right for design, no unit or individual shall, without the permission of the patented person, implement its patent in the same or similar design for the purpose of production and operation unless otherwise stipulated by the patent law.

The "approximation" mentioned in the preceding paragraph refers to the fact that there is no substantial difference in the overall visual effect between the infringement design and the authorized appearance design.

What kind of punishment will be infringed?

According to the law, the legal liability of the patent infringer includes civil liability, administrative responsibility and criminal liability.

(1) administrative responsibility.

In the case of patent infringement, the Department in charge of patent work shall have the power to order the infringer to stop infringement, to order correction, to impose a fine, etc., and the Department in charge of patent work shall, at the request of the person concerned, conciliation the amount of compensation for infringement of the patent right.

(2) civil liability.

(1) to stop the infringement (2) the loss of compensation (3) to eliminate the influence.

(3) criminal liability.

According to the patent law and

How much is the amount of infringement compensation?

In 2009, the revised Patent Law clearly stipulated the way of determining the amount of compensation for patent infringement, which was divided into four levels.

The first level is determined according to the loss suffered by the patented person.

The second level, if the loss can not be determined, it is in accordance with the interests of the infringer due to infringement.

The third level is that the loss and interest can not be determined, and it is reasonably determined according to the multiple of the royalty of the patent.

The fourth level, if the loss, interest and usage fees are difficult to determine, the compensation is 10 thousand to 1 million yuan according to the type of patent, the nature and circumstances of the infringement, and this $1-100 is also called statutory compensation.

Before the patent law was amended in 2009, the limit was 500 thousand yuan.

Rights protection process

According to reports, the ancient town rights protection center has now opened the country.

After receiving the report, the center will make a preliminary audit, and report complaints to meet the receiving conditions. It will be pferred to the corresponding administrative law enforcement agencies and judicial organs according to law, and follow up in time to give feedback to the reporting or complainants.

The scope of case acceptance includes: (1) infringing upon trademark rights; (2) infringing copyright; (3) patent infringement and counterfeiting patent activities; (4) infringing trade secrets; (5) infringing on the right to use geographical indications; violating the right to new plant varieties; infringing on exclusive rights in layout design of integrated circuits; and invading other intellectual property rights.

If an enterprise needs to safeguard its rights, it needs to give evidence to the relevant departments, including: 1. Patent certificate, patent announcement text, and duplicate copy of patent register; if patent infringement involves a utility model patent, the patent administrative department may require the obligee to issue a search report made by the patent administration Department of the State Council; second, infringement evidence.

It includes documentary evidence, material evidence and other effective evidence; third, other evidence advocated by the parties; and 4. The data of enterprise registration issued by the administrative department for Industry and commerce.

Case statement

A lighting enterprise sues 27 enterprises infringement

China Zhongshan (lighting) intellectual property rights center has recently accepted a case of infringement. Since the plaintiff complained about 27 additional complaints, the case became a major event in the lighting design industry.

According to the rights protection center, as early as April 1st this year, the complainant A company went to the copyright grassroots workstation to make a copyright complaint, and then pferred it to the trial rights center.

Subsequently, A added 27 complaints units to the rights protection center in May 16th, and provided the "imitation information table" and related evidence.

It is requested that the suspected infringing unit will infract the infringing product and promise not to manufacture, sell or promise to sell related products in the future.

Since then, in May and June, the rights protection center has jointly the law enforcement power of the municipal cultural comprehensive market law enforcement brigade, and has carried out investigation and evidence collection work for the above 27 units with the cooperation of chambers of Commerce.

At the time of obtaining evidence, the staff first indicated the identity of the person in charge of the market, indicating that the cause and the related products were suspected of infringement, and informed the relevant laws and regulations.

Then the site checks whether there are related products in the exhibition, sales, the store's suspected infringement products, the relevant business license and paction documents, photo forensics.

After the questioning pcripts are sent to the responsible person, the copyright investigation notice is sent to the site to take part of the sealed products sold in the store and give evidence for the use.

Because of the large number of stores, sales personnel also know little about copyright knowledge, which increases the difficulty of investigation.

Most salesmen are baffled that there is no copyright problem, and there are others who are strong in resistance, do not remove products, and do not sign notices.

"This law enforcement has also provided a vivid education lesson for lighting design industry."

"The strong support of the government and the active cooperation of enterprises are the two indispensable driving forces for the launching of intellectual property rights," the person in charge of the rights protection center said.