Elements of Patent Infringement

Patent Law:

Article 11: After the grant of a patent right for invention and utility model, except as otherwise provided in this Law, no unit or individual shall, without the permission of the patentee, exploit its patent, that is, manufacture, use, promise to sell, sell, or import its patented products for production and business purposes, or use its patented method, or use, promise to sell, sell, or import products directly obtained according to the patented method.

After the grant of the design patent right, no unit or individual shall, without the permission of the patentee, exploit its patent, that is, manufacture, promise to sell, sell, or import its design patented products for production and business purposes.

2. Without the permission of the patent holder

The patent right is unilaterally owned and licensed by the patentee, including the patentee's ordinary license, exclusive license, and exclusive license.

Patent rights are jointly owned by multiple parties, with the permission of the patentee. There are two ways: one is to obtain ordinary, exclusive, and exclusive licenses from all patentees, and the other is to obtain ordinary licenses from some patentees.

3. For production and business purposes

In judicial practice, "for the purpose of production and operation" cannot be simply equated with engaging in for-profit activities, nor can it be solely determined based on the institutional nature of the patent enforcement subject. Instead, it should focus on the patent enforcement act itself, consider whether the act belongs to market activities, whether it affects the market interests of the patent holder, and other factors for comprehensive judgment. Government agencies, public institutions, public welfare institutions, and other entities mainly engaged in public management, social services, and public welfare activities, who implement patents, participate in market activities, and may harm the market interests of patent holders, can be deemed to have acted for the purpose of production and operation.

4. Conduct infringement of patent rights

Infringement of patents for invention or utility model products: manufacturing, using, promising to sell, selling, or importing their patented design products

Infringement of design patents: manufacturing, promising to sell, selling, or importing design patented products

Infringement of a method patent: Using its patented method, using, promising to sell, selling, or importing products directly obtained according to the patented method

5. Is subjective fault necessary

In judicial practice, it is generally believed that the cessation of civil liability for infringement of patent rights is not based on the subjective fault of the infringer. That is, regardless of whether the infringer subjectively has intentional or negligent intent, and whether they know or should know the existence of the patent right, as long as they have committed the infringement of patent rights as stipulated in the Patent Law, they constitute infringement and should bear the civil liability for cessation of infringement.

For sales, promises of sale, or use, the subjective psychological state of the accused infringer is generally not taken into account when determining that the accused infringer bears the responsibility to stop the infringement; When determining whether it is necessary to bear the corresponding compensation liability, it will consider whether it is subjectively "unknown" in accordance with Article 70 of the Patent Law (Article 77 of the New Patent Law)