May 30, 2008
Case Brief
On September 28, 2006, a copy of the patent register issued by the State Intellectual Property Office recorded that the patentee of the utility model patent with patent number ZL01206379.7 and the name "cast iron embedded cylinder head" is Zhao Ke It was changed to Chongqing Zongshen Technology Development Research Co., Ltd., and the change registration time was February 8, 2003. On April 14, 2006, Zongshen Technology Company paid the annual fee of 1,200 yuan for the patent. On November 6, 2003, the State Intellectual Property Office issued a utility model patent search report based on Zongshen Technology's application, concluding that all claims complied with the provisions of the Patent Law on novelty and creativity. On July 28, 2006, based on the application of Liu Jinran, who was not involved in the case, the Patent Reexamination Committee of the State Intellectual Property Office issued a review decision on the invalidation request and decided to maintain the validity of the utility model patent No. ZL01206379.7. The decision found that the technical solution defined in the patent claims is to fix the insert on the cylinder head base by casting, and the material of the insert is clearly defined as cast iron, which is novel compared to the disclosed technical solution. In addition, according to patent documents, the application date for the utility model patent of "Powder Metallurgy Insert Casting Cylinder Head" is August 5, 2003, and the authorization announcement date is September 8, 2004. The patentee is Wen Guofu, and the patent number is It is ZL03249846.2. On January 31, 2007, the Chongqing Notary Office issued (2007) Yu Zheng Zi No. 31712 notary certificate, proving that Ma Guanghui, the authorized agent of Zongshen Technology Company, arrived at the company’s headquarters on the morning of January 26, 2007. The Lijiang Motorcycle Sales Department at No. 179-2, Area 2, 2nd Floor, Caiyuanba, Yuzhong District, Chongqing purchased three sets of CG125 "Lijiang Motorcycle Cylinder Heads" and "110 Rings" for 260 yuan Two pieces (the total purchase price of the cylinder head is 234 yuan), and a receipt and a business card were obtained. Both the receipt and the business card were printed with "Chongqing Lijiang Motorcycle Parts Factory Business Department, Address: Bund Motorcycle, Nan District Road, Yuzhong District" No. 179-2, Area 2, 2nd Floor, Distribution Market, Tel: 63663781", and the name "Lv Xiaorong" is also printed on the business card.
After the trial, the court held that: The court of first instance held that Zongshen Technology Company did not provide sufficient evidence to prove that the material of the insert cast on the notarized and sealed cylinder head base was cast iron, and rejected Zongshen Technology Company’s claim. Claims. The court of second instance upheld the original verdict.
Agent (Second Instance)
Presiding Judge, Judge:
According to the provisions of the Lawyers Law and the Civil Procedure Law, entrusted by Lu Xiaorong, I appeared in court to participate in this case in accordance with the lawLitigation activities, in accordance with the facts and law, the agent puts forward the following representation opinions, which we hope the court will adopt.
1. Regarding the issue of whether the reversal of the burden of proof applies? (The first point of controversy summarized by the presiding judge).
1. Paragraph 2 of Article 57 of the "Patent Law" stipulates: "If a patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual that manufactures the same product shall provide that its product manufacturing method is different from the invention patent. Proof of patented method;,,,,," "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" Article 4 (1) Patent infringement litigation arising from an invention patent for a new product manufacturing method shall be filed by the unit or individual who manufactures the same product. Bear the burden of proof that the manufacturing method of its product is different from the patented method. It can be seen from the above provisions that in patent dispute cases, the principle of "reversal of the burden of proof" applies only to invention patents for new product manufacturing methods. The dispute involved in this case is a utility model patent dispute, not an invention patent dispute over a new product manufacturing method, so the principle of "reversal of the burden of proof" does not apply.
2. The appellant’s argument that the respondent should prove non-infringement of the appellant’s patent is far-fetched. If the appellant's point of view is true, then a very absurd result will be derived. For example: Li Si's wallet was lost, and he searched here and there but couldn't find it. One day, he suddenly caught a person walking on the street and said: You should prove that you did not steal the wallet, otherwise, you stole my wallet. .
To sum up, the above two points can fully demonstrate that the appellant took it for granted that the burden of proof that should have been borne by himself should be borne by the appellee. This is too absurd and its reasons are unconvincing.
2. Do cast iron embedded cylinder heads and powder metallurgy embedded cylinder heads have the same technical characteristics? (The second point of contention ended by the presiding judge).
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