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Patent rights protection process

 

Once the patentee discovers that the invention and creation of the patent right is illegally used by others to constitute an infringement, he may, in accordance with the provisions of the Patent Law, adopt the following methods and measures to provide relief for the infringed patent right:

 

Negotiated by both parties 

The patent right is a kind of civil rights, and the parties can dispose of their civil rights according to law. Therefore, due to disputes arising from patent infringement, the law allows the parties to resolve the dispute. Of course, the parties must negotiate in accordance with the law to resolve the patent disputes, and must not damage the legitimate rights and interests of the state, the collective or the third party, and must not violate the mandatory provisions of the law and the public interest.

 

Request administrative processing 

If the parties are unwilling to negotiate or fail to negotiate, the patentee or interested party may request the department that manages the patent work to handle it. Where the administrative department of patents handles patent disputes upon request and determines that the infringement is established, it may order the infringer to immediately stop the infringing act. If the party refuses to accept the matter, it may, within 15 days from the date of receipt of the notification, in accordance with the Administrative Litigation Law. The people's court is suing; 

Where the infringer fails to sue and does not stop the infringement, the administrative department of patents may apply to the people's court for compulsory execution. The administrative department of patents that handles the processing may, at the request of the parties, mediate the amount of compensation for infringement of the patent right; 

If the mediation fails, the parties may file a lawsuit in the people's court in accordance with the provisions of the Civil Procedure Law.

 

File Civil litigation 

In the case of patent infringement disputes, if the parties are unwilling to negotiate or negotiate, and are not willing to request the administrative department of patents to handle the matter, the patentee or interested party may also file a civil lawsuit directly with the people's court; 

Or if the party requests the administrative department of patents to mediate the amount of compensation for the patent right infringement, but the mediation fails, the party may also file a civil lawsuit with the people's court. Of course, if a party files a civil lawsuit with the people's court, it must meet the conditions of prosecution under the Civil Procedure Law, the Patent Law, relevant laws and regulations, and judicial interpretation, and must be submitted to the people's court with jurisdiction. Otherwise, the people's court will not be accepted. 

In addition to the above-mentioned remedies, according to the provisions of China's Patent Law, in addition to legally bearing civil liability, the department that manages the patent work shall order it to make corrections and make an announcement, confiscate the illegal income, and may impose a fine of less than four times the illegal income; If there is no illegal income, a fine of less than CNY200,000 may be imposed; if a crime is constituted, criminal responsibility shall be investigated according to law.




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