How to solve a patent infringement?

Updated: Dec 10, 2018 govt.chinadaily.com.cn; english.legalinfo.gov.cn Print

Conditions for patent protection in China

1. The patent is authorized by China National intellectual Property Administration.

2. The authorized patent is still in its duration.

The duration of the invention patent right is 20 years.

The duration of the utility model patent right and the design patent right is 10 years.

3. The patentee shall pay annual fees starting from the year when the patent right is granted, the patent right shall be terminated before the expiration of the duration:

(1) failure to pay the annual fee as required; or

(2) the patentee waiving the patent right via a written declaration.

Patent protection methods

There are three methods to protect patent rights.

1. Disputes arising as a result of exploitation can be settled through consultation between the parties or mediated by a third party to reach a compromise.

2.The patentee requests the administration department for patent-related work to handle the dispute.

Administrative penalties will be imposed after investigation and verification of the infringement. And the department may order the infringer to cease the infringement immediately, if the infringement is established. The department also has the right to file an application with the people's court for compulsory enforcement.

3. The patentee can also take legal action before the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

The people's court shall make a ruling within 48 hours from the time of its acceptance of the application. If an extension is needed under special circumstances, a 48-hour extension may be allowed.

The amount of compensation for the damage caused by the infringement of the patent rights

The amount of compensation for the damage caused by the infringement of the patent right shall be assessed on the basis of the losses suffered by the patentee whose right was infringed or the profits, which the infringer has earned through the infringement. If it is difficult to determine the losses which the patentee has suffered or the profits which the infringer has earned, the amount may be assessed by reference to the appropriate multiple of the amount of the exploitation fee of that patent under contractual license. In addition, the amount of compensation for the damage shall also cover patentee’s reasonable expenses for stopping the infringement. If it is difficult to determine the losses incurred to the patentee, the gains obtained by the infringers as well as the royalty obtained for the patent, nature and particulars of the infringement, etc., decide a compensation in the sum of not less than 10,000 yuan but not more than 1 million yuan.

 

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