How to identify infringement after patent application failure

1. The object of infringement should be the valid patent which has patent right in our country.

Patent right has regionality and timeliness

Regionality: generally, it should be authorized by the State Intellectual Property Office.

Timeliness: patent rights that are not invalid due to payment, invalidation, abandonment and other reasons within the specified protection period.

Note: if a patent right is declared invalid for some reasons, the patent right will be regarded as nonexistent from the beginning, so even if someone else has implemented it before, it does not constitute patent infringement.

2. There are illegal activities

That is to say, without the permission of the patentee, the doer has the act of exploiting the patent for profit.

Note: according to Article 69 of the patent law, any of the following circumstances shall not be regarded as infringement of the patent right:

（1） Using, promising to sell, selling or importing a patented product or a product directly obtained by a patented method after it has been sold by the patentee or a unit or individual licensed by him.

（2） Before the date of patent application, the same product has been manufactured, the same method has been used, or necessary preparations have been made for its manufacture or use, and it continues to manufacture or use only within the original scope.

（3） A foreign means of transport that temporarily passes through China's territorial land, waters or airspace uses the relevant patent in its devices and equipment for its own needs in accordance with the agreements signed between the country to which it belongs and China or the international treaties to which it is a party, or in accordance with the principle of reciprocity.

（4） The use of patents for scientific research and experiments.

（5） Those who manufacture, use or import patented drugs or patented medical devices for the purpose of providing information needed for administrative examination and approval, or those who manufacture or import patented drugs or patented medical devices for them.

3. The actor has subjective fault

Intention: the perpetrator carries out the act knowing that his act infringes the patent right of others

Negligence: the act of infringing the patent right of others due to negligence or overconfidence

Note: according to the second paragraph of Article 63 of the patent law, even if the perpetrator has no subjective fault, it also constitutes patent infringement, but does not bear the liability for compensation.

4. It should aim at production and operation

The purpose of production and operation should also be one of the elements of judging patent infringement.

Article 11 of the patent law stipulates that after an invention creation has been granted a patent right, except as otherwise provided in this law, no one shall exploit the patent, and exploitation shall not be for the purpose of production or business operation.

Relevant laws and regulations

Patent law Article 60

If the exploitation of a patent without the permission of the patentee infringes upon the patent right and causes a dispute, the parties concerned shall settle the dispute through consultation; if they are unwilling to negotiate or fail to reach a conclusion through consultation, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle the case. If the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If the party concerned is not satisfied with the decision, it may, within 15 days from the date of receiving the notice of disposition, act in accordance with the law Administrative procedure law of the people's Republic of China If the infringer neither brings a suit nor stops the infringing act within the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties, the administrative department for patent affairs may mediate the amount of compensation for the infringement of the patent right; if the mediation fails, the parties may act in accordance with the law Civil Procedure Law of the people's Republic of China bring a suit in the people's court.