Patent litigation has become a Sino US commercial competition weapon
     USA for launching the patent litigation Chinese is nearly two or three years to increase gradually, American has more than 2700 patents last year, many of which are aimed at Chinese patent litigation. Now the patent litigation is not only for legal orders initiated, more as an economic means, become a Sino US commercial competition weapon. At the end of twentieth Century, the China Company has become the Usa Inc of strong competitors, America company develop smoothly in the USA through patent litigation slow the pace of Chinese Huawei China Company, accused of plagiarism software from USA Cisco, source code and other copyright infringement and patent infringement, and Sanyo in America accused of infringement of patent Chinese BYD is apparent in their objective. On the other hand, from the numerous USA for Chinese patent litigation can also see China Company booming strength is the recognition, has become a Usa Inc can't ignore and try various devices to curb the power of.
     The cost of patent litigation USA reason low is America patent litigation more. In American, only spend hundreds of dollars can be sued to the court for patent infringement, but if successful, may have received millions of dollars or even Jiqianwanbai yuan compensation, but also can break his opponent in the USA market way, remove obstacles to competition. For economic and competitive considerations, the patent competition repertoire in American intensified.
Direct infringement is not the only cause of patent litigation
     A China Company Usa Inc B A in violation of patent products of domestic production, but not in the American sales; China Company C as the third direction USA area and sell this kind of product; site D in Webpage on production technology products are disclosed, by China Company E interest, study produced similar infringing products and sold to USA. The infringed Usa Inc B in USA simultaneously to the A, C, D, E filed a patent lawsuit. The reason is that they also violated its patent. The reader may here for this perplexing case confused, why four different companies at the same time as the defendant.
     The lawyer told reporters that this group. In the patent infringement case, direct infringement is not the only cause of patent litigation, indirect infringement and propaganda led tort also enrich tort way. China Company E production of infringing products and constitute direct infringement in America direct sales, so A China Company; China Company C not involved in production, but as the third party in American sales of goods, constitute indirect infringement; and the website D as propaganda, lead to the occurrence of other violations, is also a kind of tort. If any enterprise has the behavior, can be patented Usa Inc in the dock.
Hold the line, a fight
     Many China Company may be in doubt, how do we know the infringement of the patent of Usa Inc. In fact, there are two kinds of most basic methods, when you get your opponent to patent infringement warning letter or a patent infringement complaint (summons), can judge patent infringement. At this time, need to hold their ground, step by step, there are plans to prepare for.
 A warning letter each other, calm
     A company in American branch, opened the American market, suddenly one day received in the USA biggest competitor, sent a letter to the company, products that infringe the patent, the letter lists, patent and patent beauty company, performance of a company. Analysis shows that a company's products, a violation of the U. S. patent in the United States, to immediately stop sales, and give a reply within 15 days. A company should be how to deal with it.
     The first step, start looking for a patent lawyer to write non infringement opinion, avoid convicted of intentional tort 3 times loss. The general need to pay 50000 to $60000 for patent attorneys. Patent lawyers to manufacturers and leadership, and technical personnel exchanges, research, write a book not tort opinion credibility strong. For too many patent lawyers the lawyer advised not to write for the group, because this behavior will make the impression for the enterprise is not good, whether to win has certain influence. In addition, also should look for a patent lawyer business, make litigation preparation.
     The second step, analysis of the product whether tort. Enterprises and lawyers take measures to ensure effective patent infringement does not, consider whether they can make some changes to the product design, bypassing the design or technology to avoid infringement, infringement.
     The third step, consider whether should withdraw from America market. If the infringement behavior really exist, immediately stop in American market sales; if there is no infringement facts, by lawyers and business executives joint consultation response.
     The fourth step, received a warning letter should be timely reply, cannot ignore. Should be neither humble nor pushy in reply that their position, cites evidence why tort fact does not exist.
     The fifth step, for reconciliation. "Compromise is the best policy, litigation is bad" Hubei Province as the group of lawyers to concise and comprehensive explanation to. The method is varied, if there is infringement facts, for patent company authorized to use this patent (License Agreement); if both parties are authorized to use the patent, can consult each other (Cross- License Agreement); agreement on cooperation to reach a common R & D and production etc..
The sixth step, if the settlement is invalid, they prepare for real guns and bullets to litigate.
Two, having received a summons a comprehensive and detailed work
     A few months after receiving a warning letter of Usa Inc, a company by the company to sue a company for patent infringement complaint and summons in America federal court, the requirements of a company to compensate for the losses, and asked the court approved the ban on a company in American sales of infringing products of the temporary and permanent injunction, a notice of summons a company in the subpoenaed 20 days of court reply.
     Received a subpoena means the reconciliation is invalid, only "hard". The lawyer for the group as specified in the enterprise, several steps are necessary after the subpoena, find a patent lawyer, write not infringement opinion, deal with the relationship between the customer, keep the all documents, and adjust the company's resources to play, there is a good enterprise economic accounts.
1, select the team of lawyers, to fight in the battlefield
     Law firms more than hair in USA, California is the largest. Large law firm, fame, but high fees, pay attention to the small case is small, and small firms are small and flexible. The group said the lawyer, a patent litigation in the American, see lawyers without looking at the law firm size, the lawyer can "work" is the key.
     The lawyer is the key factor in the war, is for you to fight in the battlefield generals. Because of the high cost of lawyers, lawyers and not easily change, otherwise the proceedings has a certain effect, it is necessary to carefully choose. First, the member selection lawyers in accordance with the actual needs, preferably by an acquaintance introduced, in America, lawyers levels are different, the choice of lawyers to credibility. The chief counsel must be experienced, partner level character, to consider the need for its technical background, if there is a technical background, can have the profound understanding and professional analysis of the patent, but not necessarily popular; if there is no technical background, he will be a people easy to understand manner the expression, more easy to be accepted by common people. Also need to select the paralegal experience (the main work and communication is done by them) and lawyer Assistant (in the file, clerical work).
     Select a law, interview with the best lawyer, first determine whether he can represent your company in litigation, if there is a conflict of interest with the other company, choose a lawyer, need to pass through this procedure.. If the lawyer a once for each other's company written contract, in principle creates a conflict of interest between the two companies, not representative of your company.
     The lawyer fee is very high, in America lawyer fees are calculated by hour. Whether the call, or the plane flipped through the pages, or read your email, as long as it is engaged in patent litigation related work time, are at work. The chief counsel at an hourly rate of $350-600, assistant solicitor at an hourly rate of $200-350, attorney assistant at an hourly rate of $75-200, and working time the telephone costs by a lawyer enterprises pay. So high fees, so enterprises began to set and the lawyer's contract, determine the cost, suggest to buy phone cards to the lawyer, to prevent the price oneself out of the market. Every time I see the patent litigation lawyer, prepared to consult the problem, to avoid unnecessary spending time.
2, the stability of the military, maintain good relationship with customers
     When the Usa Inc filed a lawsuit against the China Company, the use of psychological tactics to attack the opponent. Often use media caused a whoop and a holler, has partnerships with China Company customer psychological burden and be very upset, vacillating. And to stabilize the mood of customers, answer customer questions, can communicate with customers by lawyer lawyer hired by or with the customer's. Publicity will be determined by a lawyer, to avoid saying the wrong thing by competitor caught in court against his.
     In addition, the company has the obligation to keep paperwork involved and electronic files, for each other or the court for evidence.
3, mobilization of internal resources, economy
      A patent litigation, is the company's participation in the proceedings, to fully mobilize the resources within the company, into the battle. Responsible for writing the patent lawyers can be analyzed to prosecute patents rights; intellectual property responsible person, can list all the patent list, including the number of off patent, no number of patent newspaper, which in the future settlement or counter Sue favorable; the most familiar with the accused infringing products marketing and R & D personnel, to propose amendments or other useful products.
     In addition, should to the strategy to economy, after all, this is a from the economic considerations of commercial competition. To consider the infringement of the defendant product sales and future sales, the actual sales and profits, the market and the market share. The overall balance, reference the lawyer's advice, make beneficial to enterprise decision, both reconciliation continues to play, is the company in this battle gains for the wind vane.

A patent litigation in the America (Part Two)

     In America, patent litigation in the most expensive, most complex is known, is a lawyer industry known as the "king of litigation". Patent litigation to pass strict cumbersome procedures, each procedure and step can not be careless, parties and lawyers at every step, lest one wrong, all is lost. Because you can never predict next each other can use what way, let the case The path winds along mountain ridges. Generally speaking, the main program USA patent litigation is divided into the book, and to ban (temporary or permanent), evidence, appeal, Trial Motions Discovery, Appeal and most of the appeal court. We introduce four steps to the main.

The main procedure of patent litigation
     The first step: the book writing and the respondent.
In the indictment and responding in this book the trial by jury or judge. The evidence clearly the case from the plaintiff requested jury trial; put forward the defense, in general USA enterprises usually put forward three kinds of defense.
     1, defend the plaintiff's patent is invalid Invalidity, if the plaintiff belongs to public use Public Use, On-sale bar, the lack of advance sales of any kind of creative Non obviousness three situations, have the potential to become the defence the plaintiff's patent is invalid reason. In order to avoid the cumbersome procedures, the attorney general may request the court to the plaintiff's patent validity of judgments, if the plaintiff's patent is invalid, the case is no longer required continued, if the patent is valid, then the compensation.
     2, the plaintiff's patent defense is not the exercise of patent Unenforceable. If the plaintiff in the patent application or the R & D process using the Fraud deception or improper behavior of Inequitable conduct, the patent will be regarded as not the exercise of patent.
     3, in the defense also indicated his standpoint, non infringement case, does not lose in the imposing manner.

     The second step: to apply to the court for an injunction, prohibition is divided into temporary injunction or permanent injunction.
Temporary injunction is ordered to the defendant company cannot sell products suspected infringement of the defendant in litigation. The judge granted the injunction is strictly according to certain standards, in addition to considering the possibility of applying case, also taking into account the applicant will be irreparable loss (irreparable).
Permanent injunction approval requirements higher, generally in favor of the plaintiff and promulgated, the consequences are more serious. Such as the United States companies win, losing company will no longer in the American sales contain beauty company patent technology

     The third step: forensic Discovery. A wide range of evidence, all and litigation related information are likely to be included in the forensics. As some data of patent research and development, product sales, even including the commercial secrets. The commercial secrets is the most do not want to reveal to the public the information enterprise. The court will meet Usa Inc requested the defendant company business secret into evidence of the range of advice for the group of lawyers, the China Company may apply to the court for a protective order, related information only experts can refer to, can give the customers to access, which is conducive to the protection of business secrets is not exposed, causing unnecessary.
     In China patent litigation procedural judicial procedures have not, forensics program is also the patent litigation in the longest, a most expensive stage, often take more than a year of time, frequently spend hundreds of thousands or even millions of costs. American lawyers make fun of say, forensics process to feed a lot of lawyers. The analysis of the advantages and disadvantages of the evidence for the group of lawyers. Evidence in favor of the parties understand each other hands much evidence, timely response, but too expensive, increase the burden of the enterprise.
     The law generally through the written questions, submit the documents of Request for Document Production interrogatory, require the other party to forensics recognized Request for Admission, another export license of this link, the two sides of the export license by witnesses, lawyers representing the other asked, the witness to answer truthfully. Problems usually by surprise, very sharp, the witness can not tell lie in this kind of situation, don't talk much. In American judicial, the witness must swear the testimony before the content of all true, if found guilty of false witness, lead to serious consequences. In USA, before the witness evidence, often to practice and law, master the testimony and the answer skills.
     If the submitted documents are not available, export license is not complete, the plaintiff would put forward the application to the court summons. Summon (forced third party witness) Subpoena. If at this stage, the defendant in court reputation will be greatly reduced, affect the future trial results. The group advised, the defendant to their own lawyers to submit all documents and evidence, all Come Clean, let the lawyers were estimated according to the actual situation, put forward a strategy to deal with, any move, facing each other and forensics do so, should ease.
     In the process of forensics, expert witness Expert Witness, including technical experts, economists as expert testimony made also played a big role. Select the expert witness is often based on their interests and needs, often expert witness both views contradict, give tit for tat, only put forward to represent Fang Youli's hand, the key is to look at the jury and the court choose that kind of expert opinion and evaluation.

     The fourth step: to seek an out of court settlement opportunities.
     Ordinary people think, an out of court settlement is throwing in the towel. The lawyer pointed out that for the group and not defeat, this is the economic interests of the judgment based on. The lawyers encouraged parties actively looking for opportunities, see time machine to an out of court settlement.
     In USA. 97% patent suit in court before settlement, only 3% really played the lawsuit, because the litigation cost is too high, plus legal fees, expert fees, other charges, tall hundreds of thousands or even hundreds of million dollar lawsuit; too much influence on the normal operation of the company, invested large amount of manpower and material resources, the normal operation reduction of investment is inevitable, in the process of litigation, customer and order may loss; toss up, if lost, would lead to huge economic losses, including loss of profit, reasonable use gold, convicted of willful infringement, but also pay 3 times the loss of compensation. If received the injunction, especially the permanent injunction against more deadly, permanent loss of the USA market, has brought immeasurable loss.
Based on the above considerations, the American most patent lawsuit will be active in the trial of former handshake.

How to cooperation with lawyers?
     The lawyer charge into the enemy ranks as the parties give advice and suggestions, in the lawsuit, plays a very important role, therefore most of the company at the cost of hired well-known lawyer for the company in the mountains. A good lawyer also need to have "good" customers, "good" the key is how to cooperation with lawyers, work hand in hand.
     First, enterprises should understand, lawyer, understanding of the situation more better, whether good or bad, all conducive to the case information should let the lawyers know, particularly in evidence when, if you do not tell the lawyer, is know each other, to create difficulties, or start forcing third party witness program, it is It doesn't help the situation. the.
     In addition, to timely communication, maintain and lawyers, answer the lawyer's questions, so as not to delay time and delay. To know that every moment of lawyers, including answering questions charges are very expensive, if can be a clear understanding of the situation, because the enterprise is not a conversation to understand about cooperation, but their pay.
     In addition, the internal association to set: unified external speech caliber file, before and after the version to be submitted. Litigation lasted long, litigation involving information may be up to hundreds of thousands, if not pay attention to a little, several months apart, talk will have error, the file may have multiple versions. The group advised, enterprises should make the same person's speech or control file from the beginning, to achieve unity of coordination, unified control, avoid the slip of the tongue and file error.
     There is the enterprises to actively participate in and control procedure. Because the lawyer is to make money, a little attention, may repeat work or complicated procedures are not necessary to earn fees, so enterprises should require lawyers to reduce duplication of work, and decided to do what is necessary to achieve the purpose of the program, simple and effective.

From passive to active?
     For defendants, often in a passive situation in the litigation process, many enterprises do not have the patent protection consciousness, in the face of patent litigation, eat dark deficit after considering should actively take measures to protect themselves, at the beginning of the 90's, Microsoft from Dell tile a patent engineer, is accused of infringement. Spends a large sum of money to make things about. Microsoft thereafter will strengthen the protection of this area, change from passive to active. Take the initiative to protect patents mainly have two kinds of practices.
     Many enterprises America will formulate patent strategy, change the situation from the respondent, prevent the defendant have passive to apply for a patent, the strengthen oneself competition ability. Develop key patent strategy is not how to protect your invention, but how to prevent competitors in the same field. Formulated to take into account the most profitable products and market direction.
     In addition, establish / use patent library is also necessary to practice. Both for the American enterprise or Chinese enterprises, patent number as soon as possible, the more the number of applications, in the proceedings when there is capital and people for a supply of sth.. The role of patents is not only can increase the value of the company, is that it can collect licensing fees, revenue, is to let it become the weapon against competitors, is that it can be used as reconciliation. This is what is known as "the gold rush of patent".