1. What to do if the defendant infringes the design patent
Being sued for infringing the design of another person For design patent rights, the first thing to do is to examine whether the plaintiff’s design patent rights are valid.
According to the provisions of the Patent Law, my country's patents can be divided into invention patents, utility model patents and design patents. Invention patents have gone through substantive examination, while utility model patents and design patents have not. As long as they meet the formal requirements, a patent certificate will be issued.
Therefore, many large utility model patents and design patents in my country do not meet the substantive requirements of the patent law. For a period of time, if you think that someone else has infringed your utility model patent or design patent and you file a lawsuit in court, the court will require the plaintiff to provide a patent evaluation report, otherwise the case will not be filed. A patent evaluation report is a report issued after searching and evaluating whether a patent complies with the substantive requirements stipulated in the Patent Law. The substantive requirements here are mainly novelty, practicality and advancement. Of course, now the law has clearly stipulated that there is no need to conduct a patent evaluation before filing a lawsuit.
Novelty, that is, the patented technical solution has not been published at home or abroad before the patent application, and no one has published it publicly or used it publicly (before the modification of the Patent Law in 2008, Novelty stipulates public use and public publication in China and only public publication abroad). At this time, the reference object must not only be compared with the patent, but also must be before the patent application.
Although the Patent Law stipulates that if the accused infringer has evidence to prove that the technology or design implemented belongs to the existing technology or existing design, it does not constitute infringement of patent rights. However, many times, court judges do not have science or engineering backgrounds and cannot independently make judgments on technical issues, or are unwilling to make judgments on technical issues. If the technology is relatively complex, it is recommended that you apply to the Patent Reexamination Board for patent invalidation. After the Patent Reexamination Board accepts the case, it requests the court to suspend the trial. Generally, courts prefer this method.
It solves the problem of whether the patent is valid (there are many issues about novelty). If the patent is still valid, the next step is to compare the plaintiff's patent with the defendant's product or technical solution. Many people use the plaintiff's patent to compare it with the defendant's product or technical solution. It is wrong to compare the defendant’s products with the defendant’s products.
This kind of comparison is not simply the same or different. The key is to look at the plaintiff’s patent What are the technical features of the independent claim in item 1 (sometimes including item 2) of the claim, and whether the defendant’s products and technical solutions include these technical features. If these technical features are included, although there are some additional technologies If the features are different, it also constitutes infringement. If these technical features cannot be included in full, but some technical features are the same as the dependent rights claimed in the patent request (generally item 2 onwards), it does not constitute infringement. Of course, there are The problem of equivalent substitution is more complicated when writing again.
2. What issues should be paid attention to in intellectual property dispute litigation
(1) Determining the plaintiff’s qualifications The plaintiff in an intellectual property civil dispute case can be a party to an intellectual property contract, an intellectual property rights owner, and an interested party related to intellectual property rights. Interested parties Related parties include the exclusive owner of intellectual property, the licensee of the exclusive implementation license contract, the legal successor of intellectual property, etc.
(2) What evidence needs to be submitted:
1. Copyright dispute cases
(1) Evidence that the plaintiff enjoys copyright, such as: the original manuscript of the work , originals, proof materials of creative works, contracts for assigning or licensing copyrights, etc.
(2) Proof of defendant’s infringement, such as: infringing copies, sales Invoices for infringing copies, etc.
2. Trade secret infringement cases (1) The plaintiff has evidence of some kind of business secret or technical secret, such as: Materials developed and formed, contracts to transfer the secret, etc.; (2) Evidence that the defendant illegally obtained, disclosed, and used the business secret or technical secret without the plaintiff's permission, such as: unauthorized access to the secret without the plaintiff's permission. Proof materials; proof materials to bribe the plaintiff’s staff and induce them to reveal the secret, etc.
3. Written contracts in technology contract dispute cases, technical materials related to the contract, Feasibility study report, technical evaluation report, project mission statement and plan, technologyTechnical standards and specifications, original design and process documents, technical drawings, relevant technical forms and data photos, etc.
4. Patent infringement cases (1) Proof of rights, such as: patent certificate, patent application documents, utility model patentee shall provide a search conducted by the patent administration department of the State Council Report; (2) Proof of the infringement, such as: infringing products, order contracts or transfer contracts between the infringing party and others, sales invoices for infringing products, instructions for infringing products, technical comparison documents, etc.
5. Trademark dispute cases (1) Evidence that the plaintiff enjoys trademark rights, such as: trademark registration certificate, goods using the trademark, reduced sales of goods using the trademark quantity, profits from goods using the trademark, advertising of the trademark and goods using the trademark, etc. (2) Proof of the defendant’s infringement, such as: infringing products, their quantity and profits, sales invoices for infringing products, etc.
(3) Intellectual property cases are generally under the jurisdiction of the Intermediate People's Court
1. Patent dispute cases Cases of first instance shall be under the jurisdiction of the Intermediate People's Court where the people's government of each province, autonomous region, or municipality directly under the Central Government is located and the Intermediate People's Court designated by the Supreme People's Court. Patent administrative cases involving the Patent Reexamination Committee of the State Intellectual Property Office as the defendant shall be under the jurisdiction of the Municipal No. 1 Intermediate People's Court.
2. The first instance of trademark dispute cases shall be under the jurisdiction of the intermediate people's court or above. Each higher people's court may, based on the actual situation of its jurisdiction, with the approval of the Supreme People's Court, Large cities determine 1-2 grassroots people's courts to accept first-instance trademark civil dispute cases. Cases of dissatisfaction with the review decision or ruling made by the Trademark Review and Adjudication Board of the State Council Administration for Industry and Commerce shall be under the jurisdiction of the Beijing No. 1 Intermediate People's Court.
3. Copyright dispute cases are under the jurisdiction of the intermediate people's courts and above. Each higher people's court can determine a number of grassroots people's courts to have jurisdiction over first-instance copyrights based on the actual conditions of its jurisdiction. Civil dispute cases.
4. Trade secret infringement cases are under the jurisdiction of the intermediate people's courts. Each higher people's court can determine a number of grassroots courts based on the actual conditions of its jurisdiction and with the approval of the Supreme People's Court. People's courts accept first-instance civil cases of unfair competition, and grassroots people's courts that have been approved to hear civil intellectual property cases can continue to accept them.
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