According to the law, if a company has already manufactured the same product or used the same method or made the necessary preparations for manufacturing or using the same product before the date of patent application, and continues to manufacture or use the same product within the original scope, the company will not be regarded as infringing the patent right. However, in patent infringement litigation, due to insufficient evidence to prove that the enterprise has produced and sold the same product before the patent application, the enterprise's production and sales behavior infringes the patent rights of others.
Appearance patent application process
1, they need to apply for a patent first network search, mainly to search for the patent is novel, whether it has been applied for, or has appeared similar patented products, the same design, mainly to avoid duplication of the application was rejected application waste of time;
2, the preparation of the patent application for necessary materials, first of all, the application for a patent, the patent application for the same product, the same design, mainly to avoid duplication of the application was rejected application waste of time;
2, preparation of patent application for necessary materials, first of all, the patent application for a new product. Materials, first of all, the application for patent product pictures that the number of pictures and the relevant shooting angle should be comprehensive and clear, on the special needs of the statement and description of the place to be a close-up; second is the applicant's identity information, such as a copy of the ID card, if it is an enterprise needs to submit the enterprise's business license, legal person identification, etc., if you need to entrust someone else to deal with the relevant matters, should be submitted to the letter of attorney and other materials.
3, after receiving the above materials, the relevant departments of the patent application, will first carry out a formal review, such as whether the above materials are complete, whether the applicant's identity information can be clearly shown, whether it is consistent with the basic conditions of the application for design patents, etc., if there is no need to make corrections, the relevant staff will contact the applicant to make corrections, or directly issued a corrective notice. If the above materials are complete, then enter the substantive review process, whether the patent meets the criteria for applying for a design, whether there is a duplication of applications, and if the applicant needs to make additional explanations of the patent, the applicant will also be contacted to reply or supplement.
4, after the Patent Office staff review, the application meets the conditions for patent applications, the examiner will issue the relevant authorization notice, the notice does not mean that the patent has been authorized, but only means that the patent authorization through the audit, the applicant needs to fulfill the responsibility to pay the fee. General authorization notice will be recorded in the need to pay the fees, and the payment of the above fees with a certain period of time, if the period of time is not paid, then in accordance with the provisions of the applicant's patent application is considered to be withdrawn, the above actions need to be re-examined;
5, the applicant to fulfill the obligations of the above, according to the instructions of the Patent Office for the authorization of certificates, generally require the submission of the relevant evidence of payment of fees, the applicant will be required to submit a certificate of authorization. Submit the relevant evidence of its payment of fees, and finally the patentee in accordance with the process to obtain a certificate of patent ownership. General patent application fee is not a one-time payment, there will be a need to pay the annual fee every year, and if you do not pay the annual fee will be faced with the situation of the patent rights of the statute of limitations.
Legal basis
The Chinese People's **** and the State Patent Law
Article 75 One of the following circumstances, is not regarded as an infringement of the patent right:
(a) the patented product or in accordance with the patented method of obtaining the product directly by the patentee or its licensee, the unit or individual after sale. Use, promise to sell, sell, import the product;
(b) in the patent application date has been manufacturing the same product, using the same method or has made the necessary preparations for manufacturing, use, and only in the original scope of the continuation of the manufacture, use;
(c) temporary through the land, water, airspace of China's land, water, airspace of the foreign means of transport, in accordance with the country of which he is a member of the agreement with China or * * * with the participation of the agreement. Agreement or *** with the international treaties to which China is a party, or in accordance with the principle of reciprocity, for the means of transportation for its own needs and the use of the relevant patents in its installations and equipment;
(d) exclusively for scientific research and experimentation using the relevant patents;
(e) for the purpose of providing the information required for administrative approval, the manufacture, use, import of patented pharmaceutical products or patented medical devices, as well as the manufacture, import of patented pharmaceutical products or patented medical devices for the specific purpose of its manufacture, import of patented drugs or patented medical devices.