Is the patent examined whether the patent infringed is valid? What are the components of patent infringement?-Q&A.-Shenzhen deep trust patent Agency Co., LTD

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Is the patent examined whether the patent infringed is valid? What are the components of patent infringement?

Release Time：

2022-07-17

After applying for a patent right to the patent administration, the patent administration will examine the patent application. If it is an invention patent, after a preliminary examination, a substantive examination will be conducted according to the applicant's application, then is the patent being infringed valid?

First.Is the patent being infringed valid

Where the patent is in the application stage, the patent has not been patented, so the use of the patent by others generally does not constitute patent infringement.

Patent Law of the People's Republic of China

Article 39 Where it is found after examination of substance that there is no reason for rejection of an application for a patent for invention, the patent administration department under The State Council shall make a decision to grant the patent right for invention, issue a certificate of patent for invention, and register and announce it at the same time. The patent right for invention shall take effect as of the date of announcement.

Article 40 Where it is found after preliminary examination that there is no reason for rejection of an application for a patent for utility model or design, the patent administration department under The State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the corresponding patent certificate, and register and announce it. The patent right for utility models and the patent right for designs shall become effective as of the date of announcement.

Article 47 An invalidated patent right shall be deemed to have ceased to exist from the very beginning.

The decision to declare the patent right invalid shall not have retroactive effect on the judgments and conciliation statements of patent infringement made and executed by the people's court before the declaration of the patent right invalid, the decisions on the settlement of patent infringement disputes that have been performed or enforced, and the patent licensing contracts and patent right assignment contracts that have been performed. However, compensation shall be paid for any loss caused to others by the patentee's malice.

Where the patent infringement compensation, patent royalty or patent right transfer fee is not returned in accordance with the provisions of the preceding paragraph, and the principle of fairness is obviously violated, it shall be returned in whole or in part.

Second, what are the components of patent infringement

1. The object of infringement is a valid patent. Patent infringement must be based on the existence of a valid patent, and the exploitation of a patent that has been declared invalid or abandoned or a technology whose patent term has expired does not constitute patent infringement.

2. There must be an act of infringement. That is, there is an act of exploiting the patent without the permission of the patentee.

3. The tortfeasor is an act of actual infringement for the purpose of production and operation. China's "Patent Law" provisions: After the grant of the patent right for invention or utility model, except as otherwise provided for in this Law, no entity or individual may, without the permission of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product for production or business purposes. Or use the patented process and use, offer to sell, sell or import products directly obtained under the patented process. It is emphasized that the tort must have the purpose of production and management.

4. The tortfeasor is subjectively not at fault. In the processing of patent infringement disputes, the patentee does not have to bear the burden of proof that the defendant has subjective fault, and the principle of no-fault liability for patent infringement is taken.

The temporal, regional and intangible nature of intellectual property rights make it much more likely that others will intrude into the scope of rights than other civil rights. Taking into account the universality of non-fault damage to others' intellectual property rights, as well as the difficulty for the plaintiff to prove the defendant's fault and the ease for the defendant to prove his own non-fault, the principle of liability for intellectual property infringement adopts special provisions. However, it has also been argued that the act of exploiting a patent without knowing that another person has a patent right is itself a failure to exercise the duty of due care and is at fault, because the patent grant notice is fully open and anyone can learn about it.

Through the above analysis, it is known that according to the provisions of the Patent Law, after the patent application, the patent administration department has no reason to reject the examination, granted the right of land, and published the patent, the patent right shall take effect from the date of announcement.

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