How to judge patent infringement?


Patent protection scope is subject to claims which are the combination of the technical features. Patent infringement is based on complete coverage, so the criteria to judge patent infringement are that the accused infringing products or methods completely covered the characteristics combination of these technologies. Of course, this is the theory; there are other subsidiarity like equivalent replacement for patent infringement judgment. However, it is necessary to make a comparison between the accused infringement products and the patent technical scheme to determine.

(一)The object of infringement shall be an effective patent for patent rights in our country. First of all, in view of the regionalism of the patent right, the effective patent should be granted by the SIPO .Secondly ,considering the timeliness of the patent right, only the patent right which fails to be invalidated due to the payment, invalidation and abandonment in the protection period shall be the valid patent. It is important to note that if a patent for some reason was declared null and void, then the patent right will be deemed to be from the beginning does not exist, so even with others in the former have implemented is also not patent infringement.

(二)There are illegal acts. That is the acts of people who use the patent for profit without the permission of the patentee.

(三)The actor has subjective fault, which includes intentional and negligent. The so-called intentional means that the actor knows his or her own behavior is to infringe on other people's patent rights and implement the behavior; A fault is the act of committing an infringement of another person's patent right by negligence or overconfidence.

(四)Production and operation shall be the purpose. Article 11 of the patent law: if the invention is granted a patent right, no one shall enforce its patent unless otherwise stipulated in this law, and the implementation shall not be the purpose of production and operation. Therefore, the purpose of production and operation should be one of the components of patent infringement judgment.

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