Generally speaking, if the design patent is valid and the annual fee is paid on time, then the patent is valid. As long as the products produced by the defendant are similar in appearance to the appended drawings (six pictures) of the design patent certificate, they can be regarded as infringement.
The defendant's general countermeasures are:
(1) If the patent is invalid during the defense period, the court of first instance will suspend the trial. Both the original defendant and the defendant need to go to the Patent Reexamination Board of the State Intellectual Property Office for litigation to determine the validity of the patent, and the Patent Reexamination Board of the State Intellectual Property Office will make a decision. After the court of first instance got the judgment, it resumed the trial, which is the "two lawsuits" of the patent.
(2) The defendant will argue that his prior use constitutes infringement, because the patent law stipulates that prior use does not constitute infringement.
Second, how to calculate the amount of compensation for design infringement
1, determined according to the actual losses suffered by the obligee due to infringement. The calculation formula of this method is: the total sales reduction caused by infringement by the patentee multiplied by the profit of each patented product.
2, according to the interests of the infringer due to infringement. The general calculation formula of this method is: the total sales of infringing products multiplied by the reasonable profit of each product.
3, refer to the multiple of the patent license fee. As for "several times", the patent law does not stipulate. According to the provisions of the Judicial Interpretation of the Supreme Court on Trial of Patent Disputes (Law Interpretation 200 1 No.2 1), it is determined to be1to 3 times.
4. Legal compensation amount. The patent law stipulates that the upper limit is 6,543,800 yuan and the lower limit is 6,543,800 yuan.
When using the above three methods to calculate the amount of compensation for patent infringement, it should generally include the reasonable expenses paid by the right holder to stop the infringement, including the expenses of investigation and evidence collection and the expenses of hiring a lawyer.
In practice, only after the design patent infringement is determined can the infringer be investigated for legal responsibility according to law.