How to write the warning letter of patent infringement and how to solve the patent infringement dispute

1, both parties shall settle it through negotiation.

Patent infringement disputes belong to civil disputes, which are settled by the parties themselves through consultation, which is conducive to calming down disputes and resolving contradictions. Article 57 of the revised Patent Law first advocates this solution. However, the negotiation solution of patent infringement disputes is not a request for handling or prosecution, but generally has preconditions such as negotiation, administrative handling, judicial settlement and temporary measures before litigation. If the parties are unwilling to negotiate, they can directly handle the infringement dispute through administrative or judicial procedures.

2. Administrative treatment

It is an important way to realize patent protection for the competent department of patent work to deal with patent infringement disputes. According to Article 57 of the Patent Law, the patent administration authorities have the right to determine whether the infringement is established when handling infringement disputes; If the infringement is found to be established, it has the right to order the infringer to stop the infringement immediately.

If a party refuses to accept the decision of the patent administration organ, he may bring an administrative lawsuit to the court within 05 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement within the time limit, the patent administration organ may apply to the people's court for compulsory execution.

The patent administrative organ may also mediate the compensation for patent infringement. However, compensation for damages is a typical civil remedy, and the patent administration organ can only mediate at the request of the parties, but can't make a decision. If mediation fails, the parties may bring a civil lawsuit for patent infringement to the people's court.

3. Judicial settlement

The so-called judicial settlement of patent disputes means that in order to effectively punish the infringement of patent rights, give appropriate relief to the obligee and maintain market order, the judicial organs give the patentee the necessary judicial relief. When the patent right is illegally infringed, the patentee may bring a lawsuit directly to the people's court.

According to the regulations of the Supreme People's Court, the people's courts of first instance for patent infringement disputes are the intermediate people's courts where the people's governments of all provinces, autonomous regions and municipalities directly under the Central Government are located, the intermediate people's courts of special economic zones and the intermediate people's courts of large cities designated by the higher people's courts of all localities and approved by the Supreme People's Court. Basic people's courts and other intermediate people's courts cannot be used as courts of first instance to hear cases of patent infringement disputes.

4. Provisional measures before litigation

Pre-litigation interim measures refer to the measures taken to stop the infringement that is being implemented or about to be implemented before the start of litigation. Article 6 1 of China's revised Patent Law stipulates: "If the patentee or interested party has evidence to prove that others are committing or will commit acts infringing on his patent right, and his legitimate rights and interests will be irretrievably damaged if not handled in time, he may apply to the people's court for measures to order the relevant acts to stop and property preservation before prosecution. The people's court shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of People's Republic of China (PRC) in handling the application mentioned in the preceding paragraph. "