How to respond to patent infringement
When accused of patent infringement, the defendant is often very flustered and can easily respond hastily Or passively negotiate and mediate with the plaintiff. In fact, sometimes when faced with patent infringement accusations, as a defendant, you need to have a set of emergency plans and prepare for responding to the lawsuit in a step-by-step and planned manner. There may be a glimmer of hope! The following is based on the patent rights. The characteristics of this type of intellectual property and the relevant provisions of our country’s laws provide defendants in patent infringement litigation with some response ideas:
1. Make clever use of China's jurisdictional objection system - gain the necessary preparation time for responding
"Civil Procedure Law of the People's Republic of China": After the People's Court accepts the case, if the parties have objections to the jurisdiction, they shall submit a defense before filed during the petition period. The people's court shall review the objections raised by the parties. If the objection is established, it shall be ruled to transfer the case to the people's court with jurisdiction; if the objection is not established, it shall be ruled to be dismissed. "Jurisdictional objection is an important litigation right of the parties!
After receiving the prosecution materials transferred by the People's Court, the defendant can raise jurisdictional objections during the defense period, and can even further raise jurisdictional objection appeals after the jurisdictional objection is rejected by the court. This is what the law gives the parties Rights! Of course, just to fight for the necessaryAlthough there will be no serious consequences for raising jurisdictional objections without any basis in the preparation time for responding to a lawsuit, it is suspected of wasting judicial resources and is an abuse of rights. We do not encourage everyone to do this!
2. Questioning the existence of the plaintiff’s patent rights—denying the basis of the plaintiff’s rights
After receiving the plaintiff's prosecution materials, be sure to review the patent provided by the plaintiff:
1. Has the protection period of the plaintiff’s patent expired?
Invention patents are valid for 20 years, and utility model and appearance patents are valid for 10 years. Counted from the date of application, when the protection period expires, the patent enters the public domain and is lost. Legal protection, anyone can implement it;
2 , Is the plaintiff the patent owner? Does it have the qualifications to sue independently?
When the plaintiff is not the original applicant of the patent, it must be examined whether the plaintiff has obtained ownership of the patent through transfer, that is, the authenticity, legality and relevance of the transfer contract must be examined;
Or if the plaintiff obtained the rights through a licensing contract, then it will be triedCheck the plaintiff’s license type to determine whether the plaintiff is eligible for independent litigation: the licensee of an exclusive license can exercise the right to sue independently; a general license must be exercised through the right holder; the licensee of an exclusive license must work together with the right holder or Proceed independently with the consent of the right holder.
3. Whether the plaintiff’s patent was obtained in China Authorized?
Patents are regional, only China Only patents authorized by the Intellectual Property Office can be protected within the territory of China. If the patent is a U.S. patent or a patent authorized by another country, it is not protected in China.
4. Is the plaintiff’s patent valid?
In some cases, the plaintiff may not pay the patent in time Maintaining annual fees will lead to early termination of patent rights. Therefore, it is necessary to examine whether the plaintiff submitted the annual fee payment invoice for the latest year of the patent when suing.
3. Request for patent invalidation
On the one hand, once the plaintiff’s patent rights are declared invalid, There is no patent infringement issue;
On the other hand , while the defendant requests to declare the plaintiff’s patent rights invalid, he may alsoRequest the People's Court to suspend the patent infringement litigation and wait for the Patent Reexamination Board to make a decision on the validity of the patent right before proceeding. You can also dissatisfy the Patent Reexamination Board's review decision and file a first or second instance patent invalidation administrative lawsuit. Therefore, in judicial practice, Many defendants have delayed litigation for two to three years or even four to five years through the patent invalidation procedure. After a long period of defending their rights, the plaintiffs are often tired of fighting and will take the initiative to negotiate mediation matters with the defendants. This is also a very beneficial strategy for the defendants. .
Of course, filing an invalidation declaration cannot go beyond the enforcement of patent law. The scope of legal reasons is stipulated in the rules, and the collection of invalid evidence must also focus on the selected legal reasons. For invention patents and utility model patents, the common reasons for invalidation mainly include the following aspects:
1. The invention-creation for which patent rights are granted does not meet the substantive requirements for authorization—that is, it does not possess novelty or creativity.
The defendant needs to search for existing relevant technologies in this field , to see if there is any existing technology that affects the novelty and creativity of this patent.
2. The invention for which the patent right is granted has not been There is sufficient disclosure in the specification, and a person skilled in the art cannot realize this patent based on the contents of the specification.
3. Patent protection required by claims The scope cannot be found in the description - the claims are not supported by the description.
4. See if you meet the requirements for reasonable useSituations of use
According to the provisions of the Patent Law, the following The following situations are not considered infringement of patent rights:
1. Use or sell the products manufactured by the patentee or licensed by the patentee and then sold - the principle of exhaustion of rights;
2. If it has been produced and used before the patent application date, it will continue to be implemented within the original scope - the right of first use;
3. Foreign transport vehicles temporarily transiting the border in their devices or equipment for their own needs Use relevant patents;
4. Designed for science Use related patents for research and experimentation.
In addition, under national planning permission or patent office approval It is also legal to implement relevant patents under compulsory license.
5. Non-infringement defense - not falling into The scope of the plaintiff’s patent protection
The defendant was accused of patent infringement Finally, the claims of the plaintiff’s patent should be carefully analyzed.Ask for a letter to see if the invention you implemented falls within the scope of the plaintiff’s patent protection. If it falls into the following three situations, the defendant's behavior does not constitute infringement:
1. The invention-creation implemented by the defendant is actually an equivalent of an existing technology and has nothing to do with the plaintiff's patent - the defense of common knowledge.
2. Although the invention-creation implemented by the defendant is the plaintiff’s The content disclosed in the patent specification, but the plaintiff’s patent claims did not put forward corresponding protection requirements in the claims, or the patentee made mistakes in the description that exceeded the scope of protection of the claims due to defects in drafting the patent application documents. of publicity. The excess part is not protected and can be used by others at will - the contribution principle. (The scope of patent protection shall be determined by the description of the claims, and the description shall only be used to explain the contents of the claims)
3. The invention-creation implemented by the defendant is significantly different from the plaintiff's patent in terms of the composition of necessary technical features - it is neither the same nor equivalent. (Patent infringement usually must meet the principle of comprehensive coverage. If the accused infringing product lacks any of the necessary technical features compared with the patented product, it does not infringe the plaintiff's patent rights. At this time, the defendant needs to compare its product with the plaintiff's patent. Conduct detailed technical comparison)
6. Defendant Although an infringement has been committed, it is not liable according to law
For sellers, if they purchase and sell products without knowing that they are patent infringements, they can be exempted from liability as long as they can provide legal sources, such as purchase invoices, etc.
Or although there is no licensing contract with the plaintiff, the plaintiff has guided the defendant to implement its patented technology.
Or the defendant can prove that his alleged infringement occurred two years ago, and the plaintiff knew or should have known about this situation at that time (It is best to produce the lawyer's letter, warning letter and other letters originally sent by the plaintiff to the defendant to prove that the plaintiff was aware of the defendant's infringement as early as two years ago). Then the plaintiff loses the right to win the lawsuit because the statute of limitations has expired, and the defendant Accordingly, the defendant shall not be liable for infringement. Of course, if the defendant's infringement continues, this ground shall not be used as a defense.
The above is the relevant legal knowledge about responding to patent rights lawsuits compiled by the editor of Legal Savior Network. When patent rights are infringed, the parties concerned will protect their legitimate rights and interests by Choose to file a legal lawsuit. Once the court accepts the case, the offender will need to respond. If you want to know more, you can also consult a lawyer on the Legal Savior Network.
No comments yet. Say something...