I. Concept of Patent Infringement
Patent infringement refers to the illegal act of implementing an effectively protected patent in accordance with the law without the permission of the patentee and for the purpose of production and operation. Natural persons or legal persons whose patent rights have been infringed enjoy civil rights such as the right to demand that the infringer stop the infringement, eliminate the adverse effects, and compensate for the losses.
II. Types of Patent Infringement Behaviors
(1) Infringement of Invention Patent
Without the permission of the inventor patentee, manufacturing, using, offering for sale, selling, importing the patented product for the purpose of production and operation, or using the patented method, as well as using, offering for sale, selling, and importing the product directly obtained by using the patented method.
(2) Infringement of Utility Model Patent
Without the permission of the utility model patentee, manufacturing, using, offering for sale, selling, importing the patented product for the purpose of production and operation.
(3) Infringement of Design Patent
Without the permission of the design patentee, implementing the patent, that is, manufacturing, offering for sale, selling, and importing the patented design product for the purpose of production and operation.
III. Compensation for Patent Infringement
According to Article 71 of the Patent Law, the amount of compensation for patent infringement shall be determined according to the actual losses suffered by the right holder due to the infringement or the benefits obtained by the infringer from the infringement. If it is difficult to determine the losses of the right holder and the benefits of the infringer, it shall be determined reasonably with reference to the multiple of the patent licensing fee. For intentional infringement with serious circumstances, the amount of compensation may be determined to be more than one time and less than five times the amount determined above. When it is difficult to determine the losses of the right holder, the benefits of the infringer, and the patent licensing fee, the people's court may determine to give compensation ranging from 30,000 yuan to 5 million yuan according to factors such as the type of the patent right, the nature and circumstances of the infringement act.
IV. What to Do When Encountering Patent Infringement
(1) Negotiation: That is, the two parties conduct self-negotiation or seek mediation from a third party such as a professional mediation organization or an industry association. Resolving disputes through negotiation usually has the advantages of high efficiency, low cost, and being conducive to maintaining the cooperative relationship, and can avoid the intensification of conflicts to a certain extent.
(2) Administrative Remedy: That is, the patentee or the interested party requests the Market Supervision Administration (Intellectual Property Office) at the location of the infringing actor (company) to handle or mediate the matter.
(3) Judicial Remedy: That is, the patentee or the interested party files a civil lawsuit with the people's court.
(4) Arbitration: For matters that can be arbitrated in accordance with the law, the two parties apply to the arbitration institution for arbitration according to the reached arbitration agreement. Arbitration has the characteristics of professionalism, confidentiality, and high efficiency, and is suitable for situations where the two parties hope to use a non-litigation method and pay more attention to the protection of trade secrets and the efficiency of the award.
V. How to Prevent Patent Infringement Disputes
(1) Maintain the Confidentiality of Technology: When cooperating or communicating with others, ensure that a confidentiality agreement is signed and limit the access rights to trade secrets. Control the access of internal employees to sensitive information to reduce the risk of internal leakage.
(2) Apply for a Patent in a Timely Manner: Before publicly disclosing the solution, be sure to submit an application to the relevant patent office in a timely manner and wait for approval. Only by obtaining patent protection can you file a lawsuit against the unauthorized use by others.
(3) Improve the Quality of the Patent: When applying for a patent, pay attention to the innovation, practicality, and stability of the patent to improve the quality of the patent. For core technologies and products, consider applying for international patents to expand the scope of patent protection.
(4) Patent Portfolio: The right holder protects different aspects of the invention or innovation by applying for multiple related patents, thereby improving the coverage and protection strength of the patent.
(5) Implementation of Intellectual Property Standards: Enterprises establish a standardized intellectual property management system internally by implementing the national standard of "Enterprise Intellectual Property Management Specification", so as to improve the level and ability of intellectual property management.
(6) Regularly Monitor the Market: By paying attention to the products, technologies, and market trends of competitors, promptly discover similar or identical technologies or products. Establish a patent infringement monitoring system, check the patent database, and monitor the behavior of the market and competitors.
(7) Conduct a Patent Infringement Risk Assessment: Conduct a patent infringement risk assessment on the products already sold in the market. Identify potential infringement risks and take corresponding measures, such as redesigning the product or obtaining a patent license through a licensing agreement.
(8) Cooperate Closely with Professional Institutions: Patent lawyers in professional institutions specialize in intellectual property legal affairs, can provide professional legal advice, evaluate patent rights and interests, and formulate rights protection strategies. Enterprises should cooperate closely with professional institutions.