Release Act (2001) on the 21st
On June 19, 2001 the Judicial Committee meeting of 1180, since July 1, 2001 has come into effect.
In order to correctly hear patent dispute case, according to the "General Principles of Civil Law" (hereinafter referred to General Principles of Civil Law), the "Patent Law of the PRC" (hereinafter referred to the Patent Law), "the PRC Civil Procedure Law" and the "People's Republic of China Chief Litigation "law, as follows :
The first of the People's Court accepted the case following a patent dispute :
1, patent applications disputes;
2, franchise ownership disputes;
3, patents, patent applications for the assignment of contractual disputes;
4, patent infringement disputes;
5, counterfeiting other patent disputes;
6, invention patent applications published, awards a franchise to use the fee dispute cases;
7, duties invention inventor, designer incentives, remuneration disputes;
8, the prosecution before the application to stop infringement, property protection;
9, the inventor, designer eligibility disputes;
10, against the patent reexamination maintain review of the decision to reject the application;
11, the Committee against patent reexamination request patents declared invalid decision;
12, the State Department against the patent administration departments to implement compulsory licensing decisions;
13, the State Council against the patent administration departments mandatory license fees judice;
14、Against the patent administration departments State Council decision on the administrative reconsideration;
15, against the patent departments of administrative decisions;
16, the other patent dispute cases.
The second of patent disputes over cases from the provinces, autonomous regions and municipalities where the Intermediate People's Court and Supreme People's Court, the Intermediate People's Court jurisdiction.
Third party right of the patent reexamination Committee on July 1, 2001 on the future of utility models, designs revocation of the franchise decided against the request for review to the people's court, the people's court inadmissible.
The fourth of the parties of the patent reexamination Committee on July 1, 2001 after the dismissal of the maintenance of utility models, design patent applications review of the decision, or on the utility models, design patents declared invalid the decision against the people's court, the people's court should be admissibility.
The fifth of the act because of the patent infringement litigation filed by the defendant or to violations home to the people's court jurisdiction.
Violations included : charged with violations of the invention, utility model patents for products of manufacture, use, promise and sales, imports of implementation; The use of the patented process of implementation, in accordance with the method of direct access to patent the use of the product, promise and sales. imports of implementation; design patents on the manufacture, sale, import and other acts of implementation; patent counterfeit act to implement. These results infringement violations occurred.
The sixth of the plaintiff only infringing products maker sued not to prosecute sellers of counterfeit products manufacture and sales to inconsistency, to create the People's Court have jurisdiction; For producers and sellers of the co-defendants indicted, sales to the People's Court has jurisdiction.
Sales are producers branch, the plaintiff sued in tort sales to manufacture products manufacturer, the sales and marketing people's courts have jurisdiction.
According to Article 7 of the plaintiff on January 1, 1993 before the patent applications and granted in accordance with the application of invention patent infringement proceedings initiated by the light of the provisions of Article 5 and 6 of the provisions of the jurisdiction.
The People's Court in the above case entities trial methods applicable law does not extend patents for their invention and product requirements.
Eighth infringement of the patent application of a new lawsuit, the plaintiffs, should be prosecuted by the State Council issued the patent administration departments in a search report.
Violations of utility models, design patent dispute cases, the defendants request to stay proceedings, the respondent should be the period of the plaintiff's patents declared invalid made the request.
9 People's Court accepted the violations utility models, designs patent dispute cases, the defendant in reply during the franchise request declared invalid, the people's court should stay proceedings, but with one of the following cases, can not stay proceedings :
(A) The plaintiff issued a search report found no cause utility model patents, the loss of novelty and creativity of the technical literature;
(2) the defendant provided sufficient evidence to prove that their use of technology has been known to the public;
(3) the defendant requested the franchise declared invalid by the evidence or the reasons for not fully clear;
(4) that the people's court should not stay proceedings in other cases.
The 10th of the courts accept violations utility models, designs patent dispute cases, the defendant replied after the expiry of the request during the franchise declared invalid, the people's courts should not discontinue proceedings, but after review that it is necessary to stay proceedings except.
Article 11 People's Court accepted the invention patent infringement cases or disputes by the patent reexamination board review of patent infringement utility models, designs patent dispute cases, the defendant in reply during the franchise request declared invalid, the people's court may not stay proceedings.
Article 12 People's Court decided to suspend the proceedings, patents or interested party requests ordered the defendant to stop the act or take other stop Infringement continue to expand the measures, and to provide the security, the people's courts with the review by the relevant provisions of the law, in order to suspend the proceedings together make the decision.
Article 13 of the People's Court of patent protection for property, it should be to the State Council issued the patent administration departments assist in the implementation of a notice setting out the requirements to assist in the implementation, as well as patent protection for the period, together with the People's Court made the award.
Patent protection for a period of not more than six months, since the State Department received the patent administration departments assist in the implementation of the notification date calculation. If this franchise still needs to continue to take protective measures, the people's court should be the preservation period to the State Council before the expiration of the patent administration departments serve to further assist in the implementation of the preservation notice. Preservation before the expiry of Undeliverable as automatic lifting of the franchise property protection.
The People's Court of the franchise out quality property can take protective measures, pledgee of a priority claim from the impact of protective measures; Patentee and the licensee has already entered into exclusive licensing contracts and do not affect people's courts this franchise property for preservation.
The people's courts have been right for the preservation of patent rights, shall not repeat for preservation.
The 14th of July 1, 2001 before the use of the unit and the material and technical conditions for an invention, unit and the inventor or designer, a contract for the rights of patent applications and patents on the ownership agreement, from the agreement.
Article 15 People's Court accepted the patent infringement dispute cases involving conflict of rights, should be protected in accordance with the law prior to the rights of the legitimate rights and interests of the parties.
Article 16 Article 23 of the Patent Law of the alleged obtained earlier by legitimate rights, including : trademarks, copyrights, business name, portrait, the famous unique packaging of goods or the right to use such decorating.
Article 17 of the Patent Law Article 56, paragraph 1, of the alleged "invention or utility model patent protection with the right as the norm, brochures and Chart can be used to interpret the claims" refers to the scope of patent protection to the right should be clearly documented in the book the necessary technical features the scope prevail, but also with the necessary technical characteristics with the same characteristics as defined scope.
The same characteristics are recorded by means of technical characteristics in the same basic means of achieving essentially the same functions to attain the same results, as well as the general field of technical staff without going through the creative work will be able to think of the characteristics.
The 18th of patent infringement occurred in July 1, 2001 before the applicable revision of the Patent Law pursue civil liability; In July 1, 2001 after the application of the revised Patent Law pursue civil liability provisions.
Article 19 of the patent counterfeit, the people's court in accordance with the patent law of the 58th pursue its civil liability. The patent departments are not given administrative punishment, the people's court in accordance with the 134th General Principles of Civil Law of the provisions of paragraph 3 of civil sanctions, applicable civil penalty amounts can refer to the patent law of the 58th determined.
The people's courts in accordance with Article 20 of the Patent Law, Article 57 paragraph 1, of the copyright violations of liability, according to the right person, at the request of rights violations from being the losses incurred by the violations or because of the infringement was of interest to determine the amount of compensation.
Human rights violations were a result of the losses incurred by the franchise under the patent infringement caused by the decline of sales multiplied by the total number of patents per product for a reasonable return, which is calculated plot. Rights were sold to reduce the total number is difficult to determine the infringing products sold on the market multiplied by the total number of patents per product for a reasonable return, which is the plot can be regarded as rights were infringed by the loss.
Tort because of the infringement was based on the interests of the infringing products in the market multiplied by the total number of sales per infringing products in a reasonable profit, which is calculated plot. Tort because of the infringement was generally in accordance with the interests of the infringer of operating profits, for a total infringement of the tort industry, profits can be calculated in accordance with the sales.
The 21st infringement of the loss or the infringer was difficult to determine the interests of a patent licensing fees for the use of light, the people's court under the franchise category, copyright infringement people of the nature and circumstances, the license to use the amount of the patent license of the nature, scope, timing other factors, in the light of the patent licensing fees from one to three times to determine a reasonable amount of compensation; no patent licensing fees can be light or license fees is obviously unreasonable, the people's court under the franchise category, copyright infringement were the nature and circumstances of such factors, generally yuan 5,000 yuan over 300,000 yuan following determine the amount of compensation, which should not exceed 500,000 yuan.
According to Article 22 of the People's Court at the request of the rights and the specific facts of the case can be the right person investigation, to stop the infringement to pay the reasonable expenses in the amount of compensation range.
Article 23 of the patent infringement litigation for the Aging, 2002, since the franchise or interested party knows or should know that violations date calculation. More than 2002 people right to the prosecution, if the violation of the prosecution continues, the franchise period, the people's court should sentence the defendant to stop violations, tort damages from the amount should be right to the people's court date forward projections calculated in 2002.
Article 24 of the Patent Law Article 11, Article 63 of the alleged promise to market, is to advertise, in a shop window display or exhibition on display in such ways, the meaning of goods sold expressed.
Article 25 People's Court accepted the patent infringement dispute cases, it has been patent infringement of the department finds violations or not, people's courts should remain on the party's claim for a comprehensive review.
Before the 26th of the relevant judicial interpretations inconsistent with the provisions of this provision to prevail.
