1、How to judge the infringement in the application of invention patent
The scope of protection of a patent for invention or utility model shall be subject to the contents of the claims. The description and the drawings may be used to interpret the claims. This provision means that the scope of protection of the right shall be subject to the scope determined by the necessary technical features clearly recorded in the claims, and of course also includes the scope determined by the same features as the necessary technical features.
The so-called equivalent features refer to the technical features recorded in the claims of invention patent or utility model patent, which realize the basically same functions by basically the same means, so as to achieve the basically same effect, and require the technical personnel in the technical field to associate with the features without creative labor.
The principle of equivalence in judging the infringement of invention patent and utility model patent is a judgment method for the people's court to determine whether the product filed by the plaintiff constitutes patent infringement according to the above-mentioned means and the contents of the claims, specification and drawings. There are several ways for the people's court to use the principle of equivalence to determine whether the litigation product infringes
(1) after a simple shift of product components or a simple change in the sequence of process steps, if a person of ordinary skill in the field of the product or the method thinks that there is no essential difference between the two, which is basically the same as the patented technology, the product infringement can be basically determined;
(2) equivalent substitution. It refers to a technical feature recorded in the claim, and there is a corresponding technical feature in the product or method accused of infringement. These two technical features play basically the same role or effect in the product or method, and the general technical personnel in the technical field generally know that these two technical features can be replaced with each other, which can be recognized by the people's court Determine the infringement of the product;
(3)Decompose or merge technical features. Decomposition is to replace one of the technical features recorded in the claim of the infringed product with two technical features of the infringed product or method; Merger is to replace one of the two technical features recorded in the claim of the infringed product with one of the technical features of the infringed product or method. If through merger or decomposition, ordinary technicians in the technical field can realize the positive effect of the patented technology without creative labor, and the people's court can recognize it as equivalent infringement.
patent law Article 11
After the grant of a patent right for invention or utility model, except as otherwise provided for in this law, no entity or individual shall, without the permission of the patentee, exploit its patent, that is, it shall not manufacture, use, offer to sell, sell or import its patented products, or use its patented method, or use, offer to sell, sell or import its patented method in accordance with the patent method for the purpose of production or business operation Then we get the product.
2、How to protect the right of patent infringement
You can ask the other party to compensate for the loss. The ways to protect rights are as follows：
(1)If the infringement of the patent right causes a dispute, it shall be settled by the parties through consultation;
(2)If they are unwilling to negotiate or fail to negotiate, the patentee or interested party may bring a suit in the people's court;
(3)If the patent owner or interested party refuses to negotiate or fails to reach a conclusion through consultation, the patentee or interested party may also request the Department in charge of patent work to handle it. The Department for the administration of patent work refers to the Department for the administration of patent work established by the people's Government of the province, autonomous region, municipality directly under the central government and the Municipal People's government with large workload and practical processing capacity;
(4)If the mediation fails, the party concerned may bring a suit to the people's court in accordance with the civil procedure law;
(5)towards“12312”protect intellectual property right Report and complaint service center.
We can understand that there are several aspects to judge whether the patent is infringed or not. If the patent is infringed, we can protect its rights and interests by legal means.