Characteristics of patent disputes

   Some problems worthy of attention in patent litigation. Mainly speaking lawyer, judge worthy of attention in the agent or the trial of patent cases in question, some of these problems to the lawyer or judge people is relatively simple, but some problems are complicated, some other legal basis, there are some new changes in the judicial practice, so I will give you a description.

   In a formal presentation, I would like to briefly introduce the characteristics of patent disputes appear, these characteristics are according to the recent years our country patent trial practice summary, there are so few:

1The number of cases increased significantly, in different region.Intellectual property cases rising very fast in recent years, released last year reached30000Multi pieceThe first half of this year, the number of cases have reached2Thousand pieces, by the end of this year, the number of intellectual property cases will be close to5Million, around the world, a very large number of. Among themThe number of patents in civil cases reached4400Multi piece, in a country, patent infringement cases4000Many, quantity is quite large. In a patent case, mainly related to the two contents: one isPatent infringement(mainly civil cases), civil cases, patent infringement accounted for relatively large, in addition to the ownership of patent and other disputes; in addition aThe patent administrative cases(mainly refers to the patent invalid cases). These cases shows a characteristic: all economic, science and technology developed areas, many disputes, the economy is relatively backward point, technology is not developed, the number of cases is relatively less.

2Patent infringement dispute amount is more and more big, the amount of compensation to rise.An increasing number of patent infringement cases, the amount of compensation for the requirements of increasingly high.

3Foreign patent infringement, patent administrative cases increased obviously.In the4000Many pieces of patent infringement cases, cases involving foreigners began to increase. Cases involving foreigners is one party or both parties is a foreigner, foreign enterprise or action, is the subject of foreign. In a patent case, foreign-related cases in recent years rising is very obvious. Mainly reflects the patent system to implement fast30Years, in this case, foreign enterprises in Chinese filed numerous patents in particular invention patent, after these years of patents, in the implementation process, they think have been violated, so in the Chinese, advocated to claim their rights, safeguard their rights through judicial way, resulting in patent infringement cases increased. In tort cases, the defendant is often a counterclaim for invalidation of the patent right by the validity of the patent right, the validity of the. So in the case of foreign-related patent, patent invalid cases are also on the rise. The two pieces of increased obviously.

4The technical difficulty cases increased, complexity, more professional, involving many fields of science and technology.

5The trial speed, shorten the time limit, the standard system is not a trial.From the case to the trial court case, the judge was significantly shorter, more and more quickly, the last patent prosecution case, due to many reasons, the patent case will take three years, five years or even eight years, ten years, but in recent years, many patent cases in shorter time than in the trial concluded, the speed of. But it also reflects another problem, speed fast, standard inconsistent. The court, courts at all levels throughout the case on the same or similar case, the final processing results are not the same. This situation began to increase. The distress, agents are also very distressed. In proceedings or litigation, a lot of analysis and research, but the final result may not be in accordance with the analysis of our route to go, think can win the case, but finally lost, don't think what hope case, finally won. Such a situation. More factors can not be measured, this is now a feature of the case.

The above five aspects are characteristic of the patent case reflects, worthy of our attention in agency.

Type A, the increase of patent cases

Court cases should have a legal basis or the basis of judicial interpretation, patent cases.

Patent cases according to law to be divided into three categories:

One is the dictatorshipAdministrationThe case, one kind is the patentCivilThe case, one kind is the patentCrimeThe case.

These three kinds of cases there are some content changes according to the law, the judicial interpretation, the court from the past to now gradually accepted not to accept the. Comparison highlights aspects:

(a) the patent administrative cases

Administrative cases are generally managers as the plaintiff's management cases, in patent cases, there are mainly three kinds of situation:

1In order toChinese patent office as the defendantIn the case of patent.

2In order toThe State Intellectual Property Office, the Patent Office Patent Reexamination Board as a defendantCase. This situation is more and more, mainly related to the "patent law"41Article,46The provisions of article. It is divided into two types: one is in the patent application, toDon't give authorizationThe problems caused by the. Another is the Patent Reexamination Board (invention, utility model, appearance design patent)Invalid declarationFor determining the case. This is often the result of patent infringement cases, the patent right infringement person sues a defendant, the defendant to counterclaim despotism is invalid, the counterclaim to propose to the Patent Reexamination board. The review committee hearing, make a decision as invalid, the results of this decision, the patent right may be effective, may be ineffective, may also be partially effective, partially invalid. These three kinds of circumstances, the relative person as the administrative decision, either party may, may apply to the court for the Patent Reexamination Board as the defendant of administrative litigation filed a patent. In this case, currently in practice more.

The case in the past "patent law" provisions, is mainly directed against the decision as invalid patent may file a lawsuit. To2000Revised "patent law", into the utility model, appearance design is decided to accept judicial review. The court also increases the utility model, appearance design patent right invalid cases in this area.

3In order toThe local patent administration departments (bureau of intellectual property law to make administrative decisions cases). For example, determining whether an infringement, make the counterfeit patent administrative decisions, refuses to obey, to the court, told local patent administration department (bureau of intellectual property cases).

(two) patent civil cases

   The new increase in patent civil cases more patent civil cases, there are several in the traditional case: ① patentApplication right disputesThe case of the patent rightOwnership disputeThe case; the patent right, the right to apply for a patentThe contract of assignmentThe disputesInfringement of patent rightDisputes; 5Fake patentThe invention patent disputesTemporary protection(after the publication of the application for the grant of patent right, use fee dispute cases).

   Above is the traditional civil patent disputes. In recent years the provisions of the law, the Supreme Court judicial interpretation of civil cases increased, began to increase, more important, prominent there are so few: ① Duty Invention inventor, design award, compensation disputes; the appeal before the application to stop the infringing act, the preservation of evidence the case. The inventor, designer qualification disputes; the request of confirming non infringing patent disputes.

(three) the patent crime

This part does not have too many new changes, or three:

1The crime of counterfeiting patent, patent law (""63A, "criminal law"216A);

2, divulging State Secrets ("patent law"71A);

3Play favouritism and commit irregularities, sin ("patent law"74A).

   In the patent disputes, more and more kinds of involve civil this one case, there is a problem worthy of attention,Patent law, and no provisions for patent infringement crime."Criminal law", "trademark law", "copyright law", "Anti Unfair Competition Law" the relevant intellectual property law or criminal law which have provisions, such as infringement of trademark crime, the crime of copyright infringement, infringement of business secret, but no infringement patent crime. With the patent related crime is counterfeit patent crime, crime of divulging state secrets and play favouritism and commit irregularities crime. And there is no "patent infringement crime". Why not? With the "patent law" legislative intent on.

Two, the patent lawsuit jurisdiction to relax

(a) the jurisdiction of patent administrative cases

1V. Chinese patent office and the Patent Reexamination Board, under the jurisdiction of the Beijing first intermediate people's Court (the court byIntellectual Property TribunalBe responsible for. In the past inside the Beijing first intermediate people's court by the administrative court and the intellectual property court jurisdiction in such cases,Now united,Administrative Tribunal without trial, all by the intellectual property court, is mainly on account of the particularity of intellectual property cases.

Whether the plaintiff is Chinese or foreigners, as long as the defendant is Chinese patent or the Patent Reexamination Board, the prosecution in the Beijing first intermediate court jurisdiction.

2The local authority, litigation, jurisdiction and civil patent cases of the same.

(two) under the jurisdiction of civil cases of patent

   Civil patent cases is how jurisdiction? Jurisdiction, patent jurisdiction of civil case jurisdiction with level difference, especially in the jurisdiction, is the implementation of the special designation of jurisdiction.1985Years2The Supreme Court has issued on a judicial interpretation, the judicial interpretation, the patent cases to implement specific jurisdiction, in the intermediate court, some courts have the supreme court appointed special hearing patent cases, at that time, the nation altogether specified37An intermediate court, after20Years of practice, so far, there have been72Intermediate courts have jurisdiction over civil patent cases. The national total409Intermediate courts. In this409Intermediate courts, have76A court in accordance with the approved the judicial interpretations of the Supreme Court, a recognition of its jurisdiction, jurisdiction of the court may hear patent cases, not under the jurisdiction of the court could not accepting and hearing patent cases. Because a patent case is rather special, technical, professional stronger, so the judges must undergo professional training, specialized learning, to hear the case.

In territorial jurisdiction, patent cases like ordinary civil cases,Implementation of the plaintiff to the defendant, the principle, the principle of performance of contract and tort principles.

Is in the76A court, which court tube, the territorial jurisdiction principle with other civil cases is the same.

How to understand the act of tort?The Supreme Court judicial interpretation made a more detailed provisions:

First, the alleged infringement of invention, utility model patent product manufacturing, use, offer to sell, sell, import behavior;

Second, the implementation of patent infringement charged method using behavior, implement directly obtained by the patented process, product use, offer to sell, sell, import behavior;

Third, the implementation of alleged infringement of design patent products manufacturing, sales, offering for sale, import and other acts of;

Method patent mainly refers to the invention patent, patent products mainly refers to the invention or utility model patent,Appearance design, although also is the product, but the behavior of the design is the use of non infringement, the invention or utility model including general patent products, including manufacturing, using, offering for sale, sale, import of the five actions are infringement. For the exterior design, the use of behavior not tort.

Fourth, the implementation of patent counterfeiting behavior;

Fifth, the behavior results occurred.

These all as tort behavior, can according to these behaviors to determine jurisdiction.

In sales can sue manufacturing behavior, but must be the seller as a joint defendant. Jurisdiction to court in the place of sale.

Three, the plaintiff and the defendant

In a patent case, often prone to the plaintiff and the defendant's mistakes, cause the case was dismissed in the procedure, this often happens. So it is necessary to talk about.

(a) the plaintiff

1The plaintiff only in the patent administrative litigation in the relative people of administrative decision. Third people for the plaintiff, must be the real name (request for invalidation of the patent right can be anyone). The scope of this "everyone" is very wide, including the right to themselves, but also the virtual people, in a market economy, I want to copy a product, in imitation of invalid off before it, but be afraid to tell me the infringement, but in the market, direct declaring the patent right invalid, would you exposure to competition on the surface. Reluctant to do so, but would like to use the name of personal name, staff proposed is invalid, can? Certainly. But after the invalid decision in the lawsuit, to enter the judicial process, judicial procedure, the plaintiff in accordance with law, the plaintiff must be the real name, real people, rather than the virtual people.

2Tort litigation in the plaintiff is the patentee or the interested parties. "Interested parties", in the patent infringement litigation, refers to the exclusive licensee (available separately for the plaintiff), exclusive licensee (common plaintiff), Licensee (specially authorized, jointly or separately for the plaintiff).

3The interim injunction of the plaintiff for the patentee or the interested parties.

The interested parties include: patent licensing contract of Patent Licensee, lawful heirs of the property right etc..

Patent licensing contract licensee, exclusive licensing contract the licensee may apply separately to the people's court; exclusive licensing contract with the patentee licensee does not apply for the case, may apply for. No patent licensing contract licensee.

4The inventor qualification disputes, disputes the rewards, is the only person.

(two) the defendant

1Only the patent administrative litigation is administrative organ.

2Patent infringement lawsuits

   In the patent infringement litigation, if found multiple defendants, manufacturing behavior, use behavior, with sales, import behavior, there are a number of violations of the patent right, this time, how to find the defendant, who is the defendant, how to engage in a lawsuit. This I do a summary. The general is not difficult to grasp: patent infringement litigation, under tort product tracing tort, tort selected according to the defendant; patent infringement litigation can be additional defendants.

In patent infringement litigation found multiple defendants to sue? I personally feel that there are so few concern:

According to the different tort with a patent application (manufacturing, sales, etc.), can be used as a case, the different behavior as a co defendant;

The same patent infringement (are made or used), should the prosecution, the same behavior cannot be co defendant;

The exploitation of the patent infringement is different (all manufacturing or sales) or different tort (respectively, producing or selling), should the prosecution.

I think this is the most easily in practice, so I was summarized.

Ownership disputes, disputes, disputes the qualification of rewards, should be based on the patent right as the defendant.

For example, in the qualification, I am a real inventor, the result three people have made a contribution, finally in two, give me leave, I will tell this time, can not go to the two men, but to tell who is the owner of the patent right, because only the patent talents have the right to apply for a patent, he has the right to decide who is the patent inventor, designer, which is worthy of concern.

Four, a just, reasonable litigation request

According to the "general rules of the civil law", after the general requirements of infringement, the defendant to stop infringement, an apology, compensation for losses. Especially to stop infringement and compensate for the losses, the two is the most used judicial emergency mode.

But in practice, also have the right to put forward to apologize. Changed a few years this situation, if the patent infringement case, put forward to an apology, the newspaper said. So in the judicial practice will be more and more to be rejected. Why? Because, apology should only for spiritual damage, not for property damage, and patent infringement cases is mainly for property damage, not for the people. Not the same as with copyright, copyright infringement may have personal rights of the content, but the patent right, trademark right, mainly property.

Evaluation of five, the utility model, the patent right for design report (report)

   The new amendment of patent law, the "utility model, appearance design" to be patent evaluation report, is actually from the retrieval report.

   The last search report, absolute evaluation report today, how to grasp in practice? How come? In practice how to use? In practice, there are several issues that need attention:

(a) must submit evaluation report of patent prosecution when

   The original "patent law" article57Article2Paragraph: "relates to the utility model patent patent infringement dispute, the people's court or the patent administrative department may require the patentee issue made by the patent administration department under the State Council for the retrieval report".

   The Supreme Court judicial interpretation of article8Regulation: infringement of utility model patent disputes plaintiff, as to prove the stability of their rights, avoid the proceedings, shall be issued by the patent administration department under the State Council shall make a search report in the proceedings. The "can" become "should be", the dispute began. Up to now, still have the effect, although the law has been changed, the new judicial interpretation has been, but there has been some impact, the court said, case, if not presented, a search report, not to initiate. Because the judicial interpretation of the provisions, the court will take this to execute. Beijing court made a request:

   The Beijing Municipal Higher People's court in2001Years11Month5To ask: "the Supreme Court Supreme People's Court on the trial of patent dispute case applicable legal issues regulations" article8Article1Paragraph: "bring infringement of utility model patent litigation plaintiff, shall be made by the patent administration department under the State Council issued a search report in the proceedings." According to this provision, the plaintiff issued search report whether or not to initiate a utility model patent infringement litigation conditions, we have two kinds of views:

The first view, the judicial interpretation stipulates the prosecution shall issue a search report, therefore, issued by the retrieval report is filed a utility model patent infringement litigation conditions.

The second view, issued by the retrieval report cannot be used as a utility model patent infringement litigation conditions. Because, "Civil Procedure Law" article108On prosecution shall comply with the conditions have been made clear, whenever the infringement of utility model patent infringement litigation the plaintiff meets the required conditions, the people's court shall be accepted as. The judicial interpretation of the provisions of the original, the defendant is maintained from the litigation rights of litigation, reduce the links, reduce the accumulation of lead on the parties to participate in the proceedings, the encouragement and, does not mean that the search report is issued by the plaintiff conditions.

I tend to agree with the second opinion institute. If not, please instructions.

The Supreme People's court in2001Years11Month13On the written reply:

The Supreme People's court "on the trial of patent dispute case applicable legal issues regulations" article8Article1Paragraph: "bring infringement of utility model patent litigation plaintiff, shall be made by the patent administration department under the State Council issued a search report in the proceedings." The judicial interpretation is mainly in the patent infringement litigation because the defendant declared invalid result in termination of litigation and the measures taken by the patent right. Therefore, the retrieval report, just as evidence of the utility model patent validity, not search report is issued by the plaintiff utility model patent infringement litigation conditions. The judicial interpretation "should", intended to emphasize that the strict implementation of this system, in order to prevent too loose and lose significance. Where in accordance with the Civil Procedure Law Article108The provisions of the conditions of prosecution case, the people's court shall be accepted.

But for the plaintiff insisted not to issue search report, and the defendant in the reply within the period to declare the patent right invalid request, such as no other circumstances may not suspend litigation, the people's court shall suspend litigation. The new law after the modification, the content, and clear: may request the Department concerned or the people's court, the administration of patent work submitted a patent evaluation report as a trial, deal with the patent infringement evidence.

 

(two) patent evaluation report (report) what is the nature and function of

"Preliminary evidence" effective utility model patents of this method of interpretation, I personally think that is a problem, because according to the "patent law"39Article,40The provisions of the patent right, refers to apply for a patent, patent after review, no defect is no problem, just the grant of a patent certificate. Get the patent certificate, patent content is published, tell the world, who as the main body, apply a what kind of patent, what is the content, have the certificate to him, these behaviors can be proved as effective patent.

According to the Supreme Court judicial interpretation, according to the revised Patent Law debate, I gradually clear: search report is for the court on the defendant patent right invalid, an evidence to decide whether to suspend the trial to consider the case when the. Properties must be correct retrieval report, don't know is very difficult.

The retrieval report on the conclusions and the court decides whether to suspend litigation related, but not completely decided to suspend the trial infringement litigation evidence.

(three) patent evaluation report (report) system

1Widespread trust (human rights, law enforcement, justice, public);

2Without any supervision (not the administrative decision);

3The actual effectiveness is very low (the search range Co.).

And the suspension of infringement litigation six, counterclaim invalidation of a patent right

For this problem, practice appeared the situation of swing.

(a) the legal basis for a stay of proceedings

"Civil Procedure Law" article136Article1Paragraph5Rule: when "the case must be based on the results of another case as the basis, and the other case has not yet concluded" situation, the people's court to suspend proceedings.

How to pay attention to this problem in the litigation?

(two) stop infringement litigation judge factors should be considered

1The three principle:

(1The principle of reasonable and balanced the interests of both sides). The defendant is not bad, patent infringement lawsuits, in some cases, may be representative of the public interest, on the one hand the patentee has the monopoly rights, on the other hand is the accused of infringement litigation, if the defendant's acts constitute infringement, also told the society: this behavior can not do, do is violated the patent rights of others. If the defendant does not tort, was told: the social behavior of the. In some cases, the defendant's conduct was the representative of public interest. Then we have to consider a question: is suspended or not to stop, for whose benefit without the benefit of who, need to balance the interests of both parties.

(2) the principle of fairness. "Patent law" is not only the protection of patent rights, "patent law" aims to promote scientific and technological innovation, promote the transformation of the invention creation, not individual rights protection.

(3) emphasizes the principle of lawsuit efficiency.

2The review focus:

(1) the stability of patent rights (invalid justifications);

(2() will constitute a tort infringement defenses and patent invalid reason is consistent);

(3) types of patent object (invention patent stability is strong; the utility model without search report);

(4) the invalid time (whether intentionally delayed action);

(5There is no remedy).

(three) request to suspend litigation practice

According to the court to do, as an agent, how to grasp this matter, is suspended or not to stop, want to suspend the how to do? Don't want to abort how to do? As the lawsuit, I personally think we should pay attention to several points:

(1The defendant to stop infringement litigation), timely request to suspend the trial infringement litigation request;

(2The defendant to stop infringement litigation), should be in the defense period countersued for invalidation of the patent right;

(3At the same time) submit an application to the court, shall be submitted to the patent right may be declared invalid evidence;

(4) whether to suspend litigation by the court, the parties may not appeal the verdict.

Seven, about the "confirmation request not a patent infringement case"

It first appeared in the Supreme Court's judicial approval. (2001Year three people court No.4No.). In this reply, the first clear: the court can hear the request that is not the case of patent infringement, the case that many people do not understand, until2003Years, a Peking University graduate students, then read on the job Master, he wrote an essay "request confirming not tort", the graduate reply, not too. Why not?5A professor is that there is no heard this case. So this thesis did not, then reviews: there is the question of. Such cases are practice, and why this case?1985Years of "patent law" in say: use or sale of infringing products do not know is the behavior, this behavior is not tort.1985Patent law has clear provisions, but to2000Years of reform.

The judicial interpretation of the Supreme People's court2009Years12Month21Published "on the trial of patent infringement disputes by law interpretation of several issues", since the2010Years1Month1The date of promulgation.

Article18Article: The right to a patent infringement warning to others, be warned or any interested party by written notice obligee to exercise the right, since the rights of people receiving such written notice within one month of the date or self written warnings issued within two months from the date of the rights of people, not to withdraw the warning is not mentioned the lawsuit, be warned or any interested party filed a petition the people's court to confirm their behavior does not infringe a patent lawsuit, the people's court shall accept.

In practice there are many problems, for example the plaintiff, the defendant did not reply, can try not to miss? The plaintiff, defendant make infringement defense, case Is it right? Into patent infringement litigation? The patentee proposed to management authorities of mediation request, management authority tort, was a claimant to the court not to reply, request confirming not tort OK?

 Eight methods of patent infringement, burden of proof problem

    The problem in patent litigation, more and more worthy of attention. In accordance with the law, the burden of the general principle of "who advocate who burden". In a patent case, burden of proof is the special tort. For the relevant legal provisions, in the patent law, have provisions, and shall have a change. So here in the case, we must pay attention to the problem.

    1985Years4Month1To implement the "patent law" article60Article2Paragraph: "when any infringement dispute arises, if the patent for invention is a method of manufacturing a product, manufacturing the same product units and individuals shall provide its manufacturing method of proof."

    1993Years1Month1The date of promulgation of the "patent law" article60Article2Paragraph is revised as follows: "when any infringement dispute arises, if the patent for invention is a manufacturing process for new products, manufacturing the same product units and individuals shall provide its manufacturing method of proof."

   2001Years7Month1Implementation of the "patent law" article57Article2Paragraph: "the patent infringement dispute relates to the manufacture of new products of the invention patent, that produce the same products, units and individuals shall provide its manufacturing method is different from the patented process."

    We should pay attention to this change,1993Years ago some invention patent is still effective, if it happens tort, also with the law at the time to consider who bear tort liability.

     Bounds on the inversion of burden of proof,1993Years ago is a boundary,1993Years later is a boundary.2001Years7Months later, give what card and some new provisions.

     The burden of proof is not to say that what is not said directly to the plaintiff, the court case, and then by the full proof, but the plaintiff in the litigation, must provide the necessary evidence. Evidence5Aspects:

 1The plaintiff is the patentee or the interested parties;

 2The patent right is the basis of effective;

 3The plaintiff obtained is effectively an invention patent product manufacturing method;

 4The method results in patent is a kind of new product;

 5The new product manufacture or sale of its patent produce the same products.

 It involves a problem, the plaintiff to prove that it is "new products". For the "new products", the judicial interpretation of article17The technical scheme of rules: product or manufacturing a product known as the domestic and foreign public before the date of the patent application, the people's court shall determine that the product does not belong to the "patent law" article61Article1The provisions of paragraph of new products.

 "Does not belong to" is a new product, that is to say, at home and abroad, have not seen, it is a new product.

 According to the circumstances of the case, to see the defendant for the evidence is true, not to say that the burden of proof is finished, but must give out the actual use of screening, and not the same. The defendant bear the burden of proof negative to what degree is also very important.

 Nine, a promise to sell

    The agent knows, in accordance with the "general principles of civil law", the tort must have a causal relationship, or does not constitute infringement of civil law. "Patent law" in2000Years change, according to theTripsAgreement requirements, provisions of some content, break our country "general rules of the civil law", for example, offer to sell, sell is refers to the advertisement, in the shop window display, or in a fair way to display goods for sale. The stated willingness to sell a product's behavior, including sales of promotional or marketing. Whether you are selling really, really sold, this in our country "general principles of civil law", so it is difficult to determine the infringement. But now according to theTripsAgreement requirements, especially in view of the special nature of the rights of intellectual property, in order to increase the protection, the promise to sell behavior is written into the "patent law", that promise to sell behavior, offer behavior constitute infringement.

    Why make such a requirement? In the legislative interpretation is discussed, because in theTripsIn the protocol, there are clear rules, since joinedTripsAgreement, to meet international standards of minimum requirements.

 Worthy of attention in the lawsuit is what problem? That promise to sell behavior constitute infringement of the premise, what conditions? Is a promise to sell products.

 Ten, about the "don't know" that

    1984The Patent Act, explicitly say "don't know" situation is not deemed an infringement of the patent right, therefore, does not bear the patent infringement liability.2000Years said, do not know, to stop the infringement, to prove the legal origin of their products, do not assume liability to pay compensation.2008A "don't know", a little change, will "sell" added, to prove the legal origin of their products, do not assume liability to pay compensation.

    "Don't know" understanding, there are some different views on practice. I felt the need to clear a few points:

    (1In use, offer to sell), sales of infringing products (including products obtained directly using the patented method) behavior; do not include manufacturing, import;

    (2) use behavior promised sales or sales belonging to the infringement of patent rights, but no longer is not regarded as tort case;

    (3On the use of behavior) promised sales or sales, only to prove the legal origin of their products, do not assume liability to pay compensation, but to bear other civil liabilities such as stopping infringement, etc..

    (4The legal source) by evidence: the user or the seller through legitimate channels of purchase, the normal sales contracts and reasonable price from others buy.

 To stop the infringing act, eleven (application for pre-trial preliminary injunction)

 1The legal basis:

    The original "patent law" article61A: the patentee or interested party has evidence to prove that another person is carrying out or will carry out an act of infringing upon the patent right, if not promptly stopped its lawful rights and interests will suffer irreparable harm, can apply for to shall be ordered to stop the relevant behavior and the preservation of property to a people's court.

   The ongoing violations of stopping is possible, but not implemented, not to do, to stop the infringing act, seems overdone.

    This law, is we to set according to this, but in practice, this thing is we use the chaos, because a lot of attorney, especially the right to judge on the do not understand, they think this is a common means of settling disputes, in which case to do, so some court everywhere primary injunction.

Twelve, conflicts of rights in patent infringement litigation

    The conflict of rights had not too concerned about, but in recent years, more and more problems about the conflict of rights, and with the relevant legislation, Chinese intellectual property from the administration departments can be seen, each department each pipe section, there is no uniform tube. Intellectual Property Office of patent, Trademark Bureau of Administration for Industry and commerce under the trademark, the press and Publication Administration Bureau of copyright management is copyright, there are many other departments related to intellectual property. In legislation, the legislation is often respectively by these departments, through the legislative process to some extent, the final published. In this process, because of insufficient coordination in the legislation, so there will be some uncoordinated inconsistencies, the conflict will appear in the case.

    The conflict of rights refers to the intellectual property rights, the rights, the plaintiff and defendant have the intellectual property rights, have the relevant rights. In practice, the performance of the more prominent for:

 1A type of intellectual property rights conflict. Conflict as between invention, utility model and design patents;

 2The conflict of different types of intellectual property rights. Any conflict between the design patent and trademark right, conflict or trademark and copyright, name conflicts, specific goods or trademark right and prior use of packaging, decoration or right, trademark right and enterprise name right conflict etc..

 In order to reduce the conflicts of rights in intellectual property, from the2000Year, legislation to reduce the conflict of rights is particularly concerned about.

 "Patent law" article23The patented design, may with the prior right of another person, conflict;

 Such provisions in the "trademark law" also, article31A: to apply for trademark registration may not damage the existing prior rights.

 In authorization, our legislation began to reduce conflict of rights, if there is conflict, is often the way behind the right in front of the right, trademark has many such.

 If in the judicial process, there appears such infringement of rights conflict how to do? A general principle: the protection of the prior.

 According to the Supreme Court judicial interpretation of article15Regulation: the people's Court of patent infringement dispute cases, involving the conflict of rights, should be in accordance with the general principles of the civil law principle of good faith and the protection of citizens, legal persons legitimate civil rights protection principle, prior to the enjoyment of the rights of the legitimate rights and interests of parties.

 Specific approach to solve the conflict of rights, the following points:

 1Shall be made by the parties in accordance with the relevant intellectual property rights, have the cancellation or invalidation procedure, request the relevant departments authorized to solve the conflicts of rights, and intellectual property infringement disputes and other civil disputes.

 2After the objection, cancellation or invalidation procedure failed to solve the conflict of rights, namely the parties still have the right, or the relevant department authorized long-term did not make processing results, should be in accordance with the "civil general rules" provisions of the principle of honesty and credit and the protection of citizens, legal persons and the legitimate civil rights principle, in accordance with the law to protect the rights granted by the people or the prior priority the use of legitimate rights.

 3The specific operation, the past practice is: use the right conflict no matter, only resolve the conflict before the dispute. Now is: to find out the facts of the case, in accordance with the parties please first rights protection.

 Thirteen, about the tort compensation

 Compensation for economic loss of the infringer to bear civil liability is the most widely, the most basic way.

 In accordance with the "general principles of civil law", the infringement, should compensate for the losses.

 "General principles of civil law" to determine the compensation principle is: full compensation for the actual loss.

 Does not include indirect loss,The actual loss is how to compensate how many.

 According to this principle, the "patent law" the specific provisions of the calculation method of compensation for losses. The calculation method of the compensation for the losses are now4Article:

 (1) rights caused by the infringement of the actual losses. But sometimes it is difficult to calculate the actual loss. If we can calculate, there is evidence to prove that, this is a kind of calculation method.

 (2All profits of the infringer acquires) for the tort.

 (3According to the amount of expenses) license contract, the amount of compensation for losses.

 (4The statutory damages: in RMB)1Million yuan100Million yuan to determine the amount of compensation.

 This4Situation is not overlapping claims, is the only one. This is the basic method of calculation of compensation.

 As the patent cases, in the right protection, there are two very difficult problems, the first is the problem of tort, tort compensation after second. So the compensation issue has always been the patent law protection very difficult problem, say not clear, not calculated.

 Patent law stipulates the past, before3A, no4Kind of, the4A former3For solving the bad situation in practice, quota compensation no way and summarize, now called the legal compensation.

 Such circumstances can be used in practice. The very issue of concern is: past compensation, the choice of which method to use. But the latest revision of the patent law, changed this situation, the law on compensation, first with the loss, the loss can not calculate case, only with the defendant, the plaintiff and the defendant profit loss can't use case, have a look have a license contract before3Are not the case, can use the4For now, the sequential method, we should pay attention to the legal provisions.

 In the patent infringement damages, and a content is reasonable expenses, including attorney's fees, investigation and evidence collection fees, notary fees, lawyer expenses. What is reasonable? According to the case may be, for this, in other cases, some can not be protected, not supported. But due to the particularity of patent cases, many courts had tried to do right now, the Supreme Court has been written into the judicial interpretation. This point is worth our attention, but in practice, the reasonable expenses, request may get support, no request is not supported. Is to request the premise.

 Fourteen, the limitation of action

 The law: legal proceedings concerning the infringement of patent rights for two years, since the patentee or any interested party became aware or should have become aware of the act of infringement on the date of calculation.

 With the "general rules of the civil law" is consistent, without what good arguments, but the dispute in the civil case, the assault, there seems to be a concept, tort time point for example, go on the road, by cyclists hit, this time human body hurt, go to the hospital, in the legally prescribed time request compensation, to prosecute, after a time, may not appeal, a civil case is such. But the patent case not, patent cases because the parties infringement, patent infringement occurs often is this: as a developer to develop a product, know that there is a patent product, the front to imitation, imitation of the process, the change, will be partially party change, feel is a good stuff, products, have their own innovation, the results did not expect this thing is infringement, but the parties did not know, as long as there is a market, the parties will always do, some people describe this kind of infringement act more like a line, not a point, may do3Years,5Years. Good technology, patent protection20Years later, when the technology is still in use, how to calculate the time. If the right people suspect each other tort, because the evidence and other reasons not to sue or because someone has done very little, cannot form the competition, not to prosecute him, now5Years, do have a large, to do so, they will have to be closed, so to go and tell him, if you can? Aging too? He has already made know3Years,5Years, know this behavior? Can you tell him, patent cases in the debate is the question.

 In practice, according to this argument, the Supreme Court has in2001Years6Month issued "on the trial of patent dispute case applicable legal issues regulations" article23Article:

 Legal proceedings concerning the infringement of patent right is two years, since the patentee or any interested party knew or should have known the infringement on the date of calculation. The rights of people over two years of prosecution, if the infringement behavior in the action continues, in the patent rights within the validity period, the people's court shall sentence the defendant to stop infringement, the amount of compensation for the infringement shall the right to sue in court day onwards till two years calculation.

 In the process of the revision of the patent law, on this one, many people put forward the opinion. A limitation of action American is6Years, but that the slack except. In this6Years, knowing that the tort, not to prosecute, fangshuiyangyu, in American which is not allowed. But we didn't have provisions of judicial interpretation.

 After the modification of the patent law, once put into the judicial interpretation of the patent law, at the same time some limited conditions, but in the end, the contents of the judicial interpretation is not put into. In the process, there are many arguments. Now practice the operation or the Supreme Court judicial interpretation of the provisions of.

 If more than two years from the date of the end of the infringement, rights of people to bring a civil action, request to protect their rights, it will lose the right to win a lawsuit.

 How to do the cost issue temporary protection period? What is the cost of temporary protection period? Is an application for a patent for invention to the public during this period of time, is not given patent protection (as in the confidential patent). From open to authorize this time, because the technology scheme is open, but has not obtained the patent right, others see this thing, there may be imitation, imitation, may be at risk, if authorized, will always give the right infringement, if not, they use is legal. So the law: after the application for a patent for invention, between authorization from open to, this time, is the imitation of others. If the authorized the use right, shall pay reasonable amount of remuneration. Do not pay can engage in a lawsuit to their remuneration. If never authorized, the user will have no problem. So, "the Paris Convention" to call a fee dispute temporary protection period, which have special provisions in the law.

 Because don't know what time would have authorized the limitation of action, this time is how to determine? According to the "patent law" article13Regulation: an application for a patent for invention to the grant of patent right to use the invention without paying adequate royalties, patent litigation request their payment for two years, since the patentee obtains or should have known, others to use its invention of the day but, recently patents awarded to the patent right has already obtained or should know, since the special rights to calculate the date of the grant of the.

 How about patent dispute litigation? This in the interpretation of the Supreme Court are specified in the. The ownership dispute provisions into two kinds: one kind is the ownership dispute caused by the infringement, another is due to ownership disputes arising out of contracts. Whether it is due to what causes ownership disputes, disputes over patent infringement is the two kinds of argument: there is a limitation, without a prescription. The so-called no prescription is: it is the unit of the invention, is for individuals, or individual invention to be unit to apply for, no matter what, always be able to file a lawsuit to come back. This is a concept.

 Fifteen approaches to solve the technical problem, the court

 The technical difficulty now involved more and more professional, more and more strong, judge does not understand the technology, the judge is always legal experts, will never be replaced by technical experts, the court can not and will never be Academy of Sciences, also may not be scientists to court. In the present circumstances, intellectual property cases involved in various fields of science and technology, but the judge does not understand how to do? Practice how to operate? Cases concerning intellectual property rights disputes relates to the technical problems of complex, professional, the court generally adopt the following approach:

 1Invites relevant technical experts to make the people's jury, enter the collegial panel directly involved in the trial of cases in the first instance cases;In a collegiate panel,The expert assessors and judges enjoy equal rights.

2Hire experts in related technical field as technical adviser, review on specific technical problems in the case Organization experts, comments for reference in the trial in court.

3Hire experts in related technical field or entrust the relevant agencies to identify technical problems, the identification of the conclusions after the court testimony, as evidence in court.

4By the application of the parties concerned expert witnesses, to comment on the technical problems,And answer the other party and the court's question, the court opinions for reference.

This4Way, the most worthy of our attention is the agent about the technical identification. In the case of intellectual property identification, these years many courts in exploration, gradually standardize.

Sixteen, about the technical appraisal

Appraisal conclusion has three basic characteristics:

1.Independence. It is identified in accordance with the facts of cases, with their expertise, independent activity results.

2.Objectivity. It not only requires the identification of the case according to the material of the observed facts, but more important is to make analysis and judgment of the objective of these facts.

3.Technical. Identification and the judgment of the special, limited shall ascertain the facts of the case itself, but is not directly involved in the relevant legal issues of the case evaluation, just the fact itself. Don't involve the problem of law.

This is the most basic feature of expert conclusion.

In dealing with specific cases, mention technical expertise, to the application of the parties, but the judges have the authority; the choice of appraisal organization, the court determined by both parties; determine the sign recognition, identification of personnel, the general to the representative; the authentication matter should be clear is the technical problem; the use of expert conclusion, after cross examination can be used as evidence.

Countries are not the same, we use several methods to the front, especially in the identification of used more.

And it is related to the legal advice, legal advice in recent years gradually on the rise. In common law, some legal opinions of experts and scholars, the court to do research, a lot of judgment America, common law recognized experts point of view, which is right, which is wrong view, will do some analysis. That is to say, in the Anglo American legal system, there are often legal opinion experts are valued in court. The continental law system, has not paid much attention to, in recent years began to pay attention to, whether criminal or civil cases, in many cases, the experts in this field, research on this problem will be to pay attention.

Some problems on young judge do nothing, because they don't understand the legislative situation, background, especially no practical experience, so these years, experts are starting to come in, this is very good. In many cases, can use expert opinion to support some of the claims procedure. Of course, have the right to issue legal opinion should be experts in related fields, the legal opinion is not evidence, but for the judge, decision makers, the administrative organs of the reference, the judge should also pay attention to the legal opinion.

Seventeen, about to stop the infringing act

I just told the injunction before litigation problems, Americans inTripsInjunction before litigation request protocol, is for some difficult to make up for (the patent also has this problem). If we are concerned about the patent judicial practice, can be found in the case in recent years, in some cases, the court has made the tort but not to stop infringement judgment. The most typical is the2006-2007Years. Guangzhou has a new Baiyun Airport, Shenzhen also has a new airport, are in the2005-2006Year built, while the two airports are being sued for copyright infringement. Large glass wall airport periphery, the glass wall installation method has a patent, the patentee two airports in Shenzhen court and the Guangzhou court sued infringement, but the prosecution, the airport has been built, the court, the result is an infringement of the plaintiff's request, the airport removed or destroyed, can it? Can't. Courts handle better, the defendant to the plaintiff that tort, economic compensation, the patent right use, one-time payment of royalties.

2009Years12Month20Day, the Supreme Court made a case, international influence is very large: the patentee is private enterprises in Hubei, engaged in seawater desulphurization technology (for power generation), then a Japanese company and Taiwan to a manufacturing enterprise of a power plant in Fujian China, technology of Japanese enterprises, Taiwan enterprises money, get together power plant in Fujian, in the power generation equipment, used this technique. The plaintiff sued the Japanese enterprises and Taiwan enterprises infringement, the case in Fujian court trial, the trial6Years, in this6Years, power plant from just built to power, from1Power generation equipment to Taiwan4Generating equipment,6Years, the entire power plant together, to2008At the beginning of the year, the court of First Instance judgement, the court thinks, after6Years of trial, constitute infringement, power plants to remove. Because of the impact is very large, the demand for compensation is tens of millions, billions is but the power plant investment, and power, very high return. In this case, the Fujian Supreme Court made a judgment, constitute infringement, compensation for losses (a device5050Million), not stop tort, continue to use, consider the local economy and the people's livelihood, in the patent period, each year to the patentee24Patent royalties million.

The most controversy this decision cause abroad: the court Is it right? Do compulsory license in lieu of government. If the preliminary injunction to do, can make up, but the injunction before the court can not do, behavior and continued, this time not to stop the infringement, the claim shall be dismissed, on the back of the I start by talking about the problems, these problems are all related, we in the judicial practice, as a lawyer the patent law, not only to understand, understand the relevant procedure, but also understand the practice of those cases and judicial interpretation dispute, these problems as long as well, and thinking, research, to understand the next proxy parties. The obligation of lawyers is the agent, not to make a decision.

The problem I personally feel very worthy of attention. In these cases we can check, in patent litigation, very worthy of our attention.

Because of the time to say so much, we hope to provide some useful information in the patent agency practice, practice. Thank you!

Interactive communication

The problem1Teacher: Hello! You talked about intellectual property identification, administrative litigation, but also can be used for identification?

Cheng Yongshun: whether the "Civil Procedure Law" or the "administrative litigation law", are clearly defined: refers to the professional and technical problems, can be identified, so as not to exclude the invalid patent can be used to identify. Second, in the identification, no matter is the administrative case or patent cases, say are the professional and technical problems, not the legal issues. Third, in the administrative cases, there are many cases did not identify, and even in some cases, it is according to the appraisal conclusion overthrew the administrative decision. Fourth, the biggest controversy is the new problems, the problems in practical problems, creative, technical or legal issue. In practice, most people believe that the existing technical problems, there are legal issues, after the first clear technical problems, the law to do judgment. So the court can do identification. Patent is a pure legal problems, can not be identified, the debate inside.

The problem2: after a patent, is a new product, but which is the concept of new products refer to?

Cheng Yongshun: is not simply about new products, but in terms of manufacturing method. The original intention of legislation of many is about drugs, chemicals. In intellectual property, intellectual property trade can leave some living, some intellectual property simply can not survive, for example drugs. Drugs with all related to intellectual property. The new product is mainly about the past no, originally in terms of new products, in Chinese market, nothing manufacturing, using, see things is the new product, of course, this new product is really a class or subclass, no such division, is completely under the circumstances of the case, just making the at present, the case, a method for manufacturing drugs, chemicals. You can see this is basically the case. Understanding may be better from this point of view, is not clearly defined.

The problem3: a promise to sell, if you can get protection, no protection, is lost, there is no likelihood of compensation?

Cheng Yongshun: No, because the promise to sell just premise sales behavior, did not cause any damage, but in order to investigate the promise to sell, spent other expenses, may obtain protection.

The problem4: "have provisions on patent novelty method", which in practice how to define its scope?

Cheng Yongshun: it doesn't matter this question with a professional suit, is the novelty of the problem, second, impact litigation amendment of patent law, today I did not say. Third, in some cases, also did not apply for a patent, being the use of improper means to be leaked, such as stealing, leak trade secrets, such proof, have special requirements, all have such provisions, not only in our country.

The problem5Teacher: Hello, as a lawyer, what good method in licensing fees the standard of compensation?

Cheng Yongshun: I say of right conflict, involves the legislative, do not know if you have not heard. Each of the legislation law, not very coordinated, amend the patent law, want to move closer to the patent law, the patent law, the provisions of compensation calculation method in my opinion is not progress, not practical. Trademark issues you mentioned, the trademark license contract is never in the compensation prescribed, the trademark license contract with a patent licensing contract is not the same, so the plaintiff, the defendant trademark has always been a loss of profit or court for compensation. The trademark is to be.

The calculation method of compensation,1984Promulgated the trademark law, which is the meaning of the profit loss, never told license. The revision of trademark law, some Is it right? According to the patent, the several standard written, in a sequence, into a consistent, for the future in the intellectual property code to the service, but I think it can't operate.

The problem6: a preliminary injunction acquisition whether easily?

Cheng Yongshun: the past is easy, it is difficult to. Because the provisions48Hours to make a decision, if not clear, give you48Hours, must be carefully straighten out whether an infringement. So to satisfy two conditions: one is whether tort, two Is it right? Give you cause irreparable damage. The two important.

The problem7: how to prove the irreparable harm?

Cheng Yongshun: just over power plant example, power plant up, not down, but the patent by the infringement, that is irreparable harm, not to2Do can make up for the.