With the concept of intellectual property right has win support among the people, the number of patent applications in the rising, with the patent infringement dispute and to increase. As in other cases, the core of patent infringement lawsuits evidence it is always in the litigation, but compared to the patent infringement dispute the evidence in the case of other cases have certain particularity. This paper from the two aspects of the plaintiff and the defendant, combined with the author's practical experience are briefly introduced.

The burden of proof and proof of the plaintiff

In the patent infringement litigation plaintiff should first according to the tort liability provisions of China's tort law of the four elements to collect evidence, should also be combined with the particularity of patent infringement, and strive to submit to the court evidence to form a complete chain of evidence, with no chink in one's armour. As the plaintiff, shall provide the following evidence:

A, the right evidence

1, qualification of plaintiff, the natural person is the ID, enterprises and institutions for the business license or certificate of registration of institutions.

2, the patent certificate, proof of ownership of the patent authorization.

3, the patent registration copy. In a sense, the patent registration copy is a more important evidence than the patent certificate, as recorded in the certificate of patent is the ownership of patents, licensing, patent ownership status may change, such as the transfer of patent rights, patent is declared invalid, the content is not reflect the in the patent certificate, but will be reflected on the thin copy of registration in the patent, but in practice some of the patentee does not provide, some judicial institution has not given due attention.

4, patent authorization proclamation text: the invention or utility model for claims, specification, abstract and abstract figure; for the announcement authorized pictures or photos and brief description of appearance design

5, the patent fee receipt: proof of patent continuously and effectively. In fact, the evidence provided in the patent register copy of the circumstances, can not provide. Because the bottom line in the patent register copy marked "the patent fee has been paid to a certain period of a day". The patentee in judicial practice and provide proof of patent fee receipt to show a patent has been pay an annual fee, patent continuously and effectively. But the payment practice in the State Intellectual Property Office of the patent, even if the patent has been declared invalid, or due to not pay an annual fee and lead to termination of the patent right, to pay patent fee can be performed, thus obtains the patent fee receipt. Therefore, the patent fee receipt to prove the patent sustained effectiveness is not sufficient, and sometimes even wrong. Thus, the patent register copy is extremely important. The author thinks that appear in practice by patent fee receipt to prove the patent sustained and effective, may be affected by the influence of the Supreme People's court "certain provisions" on the pre litigation to cease the patent infringement of applicable law article fourth, the provisions: the patentee shall submit the patent valid documents, including the patent certificate, claims, specification, patent annual fee paid certificate. This patent annual fee paid certificate is one of the patent valid documents, but did not mention the patent registration copy, can not be said to be a flaw.

6, the utility model patent search report: "the Supreme People's Court on the provisions of article eighth provisions" apply the law of patent disputes case, filed infringement of utility model patent litigation plaintiff, should be in the prosecution made by the patent administration department under the State Council issued the retrieval report. Therefore in the judicial interpretations promulgated, many court of utility model patent infringement litigation in the plaintiff, if not provided by the utility model search report, the court rejected. But it was not in conformity with the provisions of the civil procedure law article 108th. Then the Supreme Court associate in response to the Beijing Municipal Higher People's court in clear, issued by the utility model retrieval report did not mention the utility model patent infringement litigation conditions. But if you do not provide the retrieval report on the patent, filed the request for invalidation, such as no other circumstances may not terminate the proceedings, the people's court shall suspend litigation. The author has represented the plaintiff a utility model patent infringement litigation somewhere in the intermediate people's court, in the case, filed court judge that the author does not provide receipts the patent search report and patent annual fee, and quasi inadmissible. After the author and the intellectual property court judge communication, according to the regulations, the intellectual property court judge to file court to telephone, to accept the case. But the defendant quickly filed the request for invalidation case, naturally to suspend the trial. Therefore, the plaintiff should provide a utility model patent search report, to avoid the case is to suspend the trial.

Two, evidence of infringement

1, documentary evidence: usually the notarization, the patentee through the market survey, found the infringement, usually apply to the notary organs legalization of infringement, or the purchase of infringing products and purchased the infringing products (such as offering for sale) or on the tort product installation of exploration of notarization, obtain certificate, to prove the existence of tort. In the process of notary evidence, the patentee to obtain the best seller product brochures, sales of infringing products staff card, purchase invoices or receipts, to further clear, the manufacturers and sellers of products, at the same time, the patentee may request to the data source of a notary public and authenticity, are recorded in the notary in the book. And by the way, in the choice of a notary public, should also be considered, such as in the provincial capital city, can choose the notary public office, but do not choose the District Notary Office, one may lack experience District Notary area, two may be District Notary Office for local protection or worry about being hit retaliation, but for various reasons behind. The author worked in Tianjin city and Zhengzhou city city application notarized will encounter such problems, the district notary offices Dodge is inadmissible, but Tianjin City Notary Office and notary office in Henan province has accepted the application for notarization, and effectively made the evidence preservation notarization.

2, the evidence: the patentee from the market to buy infringing products. Purchase of the infringing products by notaries archive, and photographed. Before submission to the court, the plaintiff shall ensure that the seal was unbroken, or the defendant may be challenged under cross examination, the infringing products were not recognized.

Three, the loss of evidence

1, patent licensing contract: now in the judicial practice, provide proof of loss cases are less, the objective reason is the difficulty of such evidence, the high cost of the burden of proof. Therefore, the emergence of a large number of patent right by signing a patent licensing contract with others, the license contract use fee as compensation request basis. Patent licensing contract becomes the economic loss of evidence. In the domestic enterprise patent management the first step, usually with its business units signed the name of patent licensing contract, and go through the formalities of corresponding and patent licensing fees, payment and tax payment certificates, but the licensee does not actually the production of patented products. Under such circumstances, the contract licensing fees should not be used as the reference for compensation. Because the contract licensing fees cannot objectively reflect the market value of a patent.

2, financial audit report: according to the relevant provisions of the patent law, tort compensation to determine the amount of patent licensing in reference to the use of charges, and the rights of people caused by the infringement of the loss caused by the infringement or for benefits and statutory damages infringer. In the claim of the plaintiff to their subject to losses as the amount of compensation for the financial audit report, should provide their own profit per unit of product, and the number of the plaintiff or the defendant's sales due to reduced total manufacturing infringing products due to the infringement of the defendant, the plaintiff is the product of two multiplication is the amount by which the loss in the plaintiff's claim to the basis; the defendant as the basis for compensation, the plaintiff usually apply to the court for the preservation of the financial accounting books, the independent third party audit, infringement profit to audit conclusion determining the defendant, and clear the basis of compensation from the defendant. Finally, in the legal compensation, the plaintiff may provide some evidence that the defendant patent infringement plot and product market value auxiliary evidence, as reference factors in determining the specific amount of compensation for the court of.

The defendant's testimony and evidence

The defendant in the notice to the defendants received patent infringement litigation, should not blindly with the plaintiff reconciliation, but should analyze the plaintiff to provide evidence, according to the defense claims, collect organizations on their own favorable evidence. There are a variety of practices in the defense of the accused claimed, below according to different defense advocates, separately elaborated the defendant's testimony and evidence.

One, the blemish of right of Defense

The defendant the right to defense, usually on the plaintiff's qualification, patent ownership, the validity of the patent right of defense.
The patent infringement litigation is usually initiated by the patent litigation itself, but the licensing conditions in some patent, by the licensee proceedings, shall review the licensing mode in this case, according to the judicial interpretation of the provisions, only exclusive licensing Licensee may be the plaintiff sued, ordinary licensing and exclusive licensee licensed without permission of the patentee cases cannot be regarded as the plaintiff sued. Therefore, the defendant shall examine whether the plaintiff is may bring a lawsuit by the licensee.

In the patent right has been transferred to others, the original patent is filed lawsuits, this kind of case, in practice it happened. Therefore, the defendant should provide the patent register copy, proof of patent right transfer has occurred, the plaintiff does not have the qualification of subject of action.
In addition the patent right may have terminated, but the plaintiff is out of competition strategy considerations, filed lawsuits against the defendant, in this case, the defendant to provide a copy of the patent registration is necessary. According to the provisions of the detailed rules for the implementation of the patent law, anyone can apply to the State Intellectual Property Office to apply for patent registration thin copy. The defendant to provide the patent registration copy without any legal or practical obstacles, as long as the payment of the necessary fees.
A more special is the maker of manufacturing patentee sales of patent application to patent authorization day between identical products or seller to file a lawsuit, according to the law, during manufacturing or selling behavior is not constitute infringement, the defendant should also give the necessary attention.

Two, non infringement

The basic principles of infringement is a comprehensive coverage of the defence principle, non infringement, should prove infringement products lack the necessary technical features in the claim or infringing products with the technical features of the patent right requirements necessary technical features substantially different form no equivalent. To complete the proof task, the defendant only according to the patent right requirements provided by the plaintiff and the infringing products were compared, it can be concluded, therefore the defendant provide evidence of such a plea cases without.

But if the defendant claims not tort reason is the product counterfeiting of others the production, in this case, the court should how to allocate the burden of proof? The burden of proof of plaintiff is the product is really the production, or by the defendant products not produced? Different cases in judicial practice.

Third cases of the defendant to estoppel principles not tort. In order to prove that the plaintiff's burden of the plaintiff, the defendant should be in the patent application or invalid process, or other patent opinion statements to the state intellectual property according to or the Patent Reexamination Committee regarding the relevant documents to the patent claim or statement made a restrictive interpretation. But in the patent infringement litigation, plaintiff is that the application of the principle of equivalent infringement by the defendant to that view, expand the scope of protection of the patent right. And so on the defendant, is also detrimental to the public, and were not in accordance with the principles of honesty and credibility, and therefore is not the patent of justice. Therefore the defendant should be a detailed understanding of the patent documents. With the patent register counterpart, anyone can submit an application to the State Intellectual Property Office, patent document request replication. So in the patent defendants received complaints, the first thing to do is to the State Intellectual Property Office for reproduction in patent documents.

Three, public technology defense (Design)

The so-called well-known technology (Design), refers to the invention, utility model or design patent application prior to the date of publication published at home and abroad, public use at home or a public known technology in other ways (design). Therefore the defendant shall be supplied with the technical scheme of the infringing products using the same or equivalent document known technical publications or the exact source, sales or use time of the product and related auxiliary documents such as product brochures, catalogues, sales invoices and testimony of witness.

Four, the first right to defense

Practice for use in defense of the right of prior use have many, but success is very few. Is insufficient evidence, usually the defendant should provide the following evidence:

In 1, before the filing date of the patent design drawings and process documents;

The quantity of equipment and production capacity of 2, before the filing date of the plaintiff's patent has been the acquisition of information.

Five, contract plea

The three courts in Zhejiang Province Higher People's court and judge in a course of lectures, talked about the real case of a contract defense. The patentee and others signed an exclusive licensing contract. But soon after the signing of the contract, the patentee and another person again signed a licensing contract. Be live in a drum the monopoly implementation licensee subsequently found general licensee licensed products into the market, and to the ordinary license licensee Institute infringement proceedings, the common licensing by the licensee with common licensing contract plea, the plaintiff had no choice but to the withdrawal of the suit, filed a breach of contract lawsuit back to the patentee. This case is a typical example of successful defense contracts.

Another scenario is that the implementation of technical scheme and the plaintiff's patent is the same or equivalent is obtained from others permit, in such case, the defendant shall provide the license contract to the court, although the evidence does not absolve the defendant's tort liability, but the defendant can apply for an additional turn to as a defendant, to assume liability to pay compensation jointly, avoid direct bear all liability for tort.

Six, the profit is lower than the plaintiff requests the amount of compensation for infringement counterplea

The plaintiff in an infringement lawsuit, on the basis of patent licensing more royalties as the amount of compensation for infringement of statutory compensation basis or on the upper limit of 500000 yuan as compensation for. If the infringement of the defendant, but the profit was significantly lower than that of the plaintiff's claim, the excessive amount of compensation the defendant may in its own tort the amount of profit to the plaintiff and defense. Therefore the defendant should provide financial audit report credibility, prove their profitability. At the same time, also can provide other assistance evidence, such as between the company's business license and other proof of date of establishment to the occurrence of violations of the short time of evidence, in order to further reduce their liability.

Seven, the legitimate sources of Defense

According to the provisions in the second paragraph of the patent law of sixty-third, for the purpose of production and operation or sales do not know without permission of the patentee to manufacture and sell a patented product or a product directly obtained in accordance with the patent method, can prove that the product from a legitimate source, is not liable for damages. Therefore this article for the defendant to provide legal defense according to the good, the defendant should make full use of. Therefore the defendant should provide the legitimate sources of exact evidence, such as sales contracts, lease contracts, invoices, transport documents and other evidence trading legally established all the evidence, and the defendant can provide other relevant evidence, such as the storage of samples, product pictures, so as not to be against the objections in relevance of the evidence.

Conclusion

Patent infringement litigation evidence, the type is various, all kinds of forms is not exhaustive, one one. So in practice should be specific, concrete treatment, and carefully careful carefully, because the patent law is about the details of a law, a carelessly may fail. (intellectual property news Zhang Jianliang)