Who bears the attorney fees for patent protection?
In cases of copyright infringement, trademark exclusive rights, patent rights and other intellectual property cases, The rights holder may require the cost of hiring a lawyer to be borne by the infringer as a reasonable expense for defending the rights.
Legal basis:
(1) Article 48 of the Copyright Law and the Trademark Law, infringement The amount of compensation for copyright and trademark exclusive rights includes reasonable expenses paid to stop the infringement.
(2) Article 17 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases" stipulates: Article 56 of the Trademark Law prohibits infringement Reasonable expenses paid for the act, including the reasonable expenses incurred by the right holder or his agent to investigate and collect evidence for the infringement; the people's court may, based on the parties' litigation requests and the specific circumstances of the case, calculate attorney's fees that comply with the provisions of the relevant state departments into the compensation. within the range.
(3) "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases" stipulates: Article 48, Paragraph 1 of the Copyright Law The stipulated reasonable expenses paid to stop infringement include the reasonable expenses of the right holder or the authorized agent to investigate and collect evidence for the infringement. The People's Court may, based on the parties' litigation claims and specific case circumstances, calculate attorney fees that comply with the provisions of relevant state departments into the scope of compensation.
(4) Article 22 of the "Several Provisions of the Supreme People's Court on Applicable Legal Issues in the Trial of Patent Dispute Cases" stipulates: The right holder claims that it paid to stop the infringement If the expenditure is reasonable, the People's Court may calculate it in addition to the amount of compensation determined in Article 65 of the Patent Law.
Both parties clearly agreed in the contract that the attorney’s fees should be borne by the losing party.
According to the principle of freedom of contract, as long as both parties agree in the contract that the attorney's fees will be borne by the losing party, thenClaims for attorneys' fees will generally be upheld when suing or arbitrating. Therefore, lawyers remind the parties that when drafting the contract, the parties can include attorney fees as compensation for breach of contract, and can even list in detail the method and standards for bearing attorney fees. When drafting such a breach of contract clause, special attention must be paid to clearly stating "attorney's fees". Others such as "expenses for realizing creditor's rights" are not clearly agreed and may not be supported by attorney's fees. The court's agreement on this The censorship is very strict. When filing a lawsuit, the plaintiff must submit the entrustment contract signed with the law firm and the attorney fee invoice issued by the law firm as evidence of payment of attorney fees. However, the specific amount of support will depend on the judge's discretion, which is based on the nature of the case. Usually the court will support "reasonable" attorney's fees, not the full costs.
The determination of patent infringement mainly includes the following aspects:
(1) Infringement The object should be a valid patent that enjoys patent rights in my country. First of all, in view of the regional nature of patent rights, valid patents should generally refer to patents authorized by the State Intellectual Property Office. Secondly, in view of the timeliness of patent rights, only patent rights that have not expired due to payment, invalidation, abandonment, etc. within the specified protection period are valid patents. It should be noted that if a patent right is declared invalid for some reason, the patent right will be deemed to have ceased to exist from the beginning. Therefore, even if someone else has implemented it before, it is not enough to constitute patent infringement.
(2) There are illegal acts. That is, the perpetrator has exploited the patent for profit without the permission of the patentee.
It should be noted that the Patent Law stipulates five behaviors that are not considered to be infringement, which are exceptions to patent infringement liability. If the perpetrator cannot provide evidence, this will be regarded as an infringement. If there are no grounds for defense, the perpetrator should be determined to have committed patent infringement and bear liability in accordance with the law.
(3) The perpetrator is subjectively at fault. The subjective fault of the infringer includes intentionality and negligence. The so-called intentionality means that the actor knows that his behavior is an infringement of the patent rights of others and carries out the behavior; the so-called negligence means that the actor carries out the behavior of infringing the patent rights of others due to negligence or overconfidence. However, there are exceptions. For example, Article 63, Paragraph 2 of the Patent Law stipulates that even if the perpetrator has no subjective fault, it still constitutes patent infringement, but he will not be liable for compensation.
(4) It should be for the purpose of production and operation. Article 11 of the Patent Law stipulates: After an invention-creation is granted a patent right, no one may exploit the patent, except as otherwise provided in this Law, and the exploitation shall not be for the purpose of production or business. Therefore, based on the production experienceBusiness purpose should also be one of the elements for determining patent infringement.
Concerning issues such as the burden of patent rights protection attorney fees and the amount of patent rights protection attorney fees, you should consult the lawyers of the Legal Savior Network online to provide good advice.
