After the patentee thinks that his China patent has been infringed, he should first make a careful comparative analysis of the other party's technology and his own patented technology to see whether the technical characteristics of the other party really belong to the protection scope of his own patent, so as to determine whether the patent infringement is established. Patentees often overestimate their own patents, so it is best to entrust domestic patent lawyers to analyze whether it constitutes patent infringement and provide legal advice. Because China's patent lawyers are familiar with China's laws and analyze them from an objective standpoint, their legal opinions are objective and fair, which can be used as a reference for decision-making. Then, the patentee should also analyze the patentability of his China patent to determine its effectiveness. Because according to China's patent law, China Patent Office only examines invention patents, not utility models and designs, but only conducts formal examination. Therefore, in general, if it is an invention patent, we can analyze the novelty, creativity and practicality of the patent as long as we check whether the annual fee is paid and whether the patent is valid. For utility model patents and design patents, we must carefully analyze the three characteristics of patents. Only under the premise that the patent for utility model or design is patentable and is indeed an effective right, can we bring a lawsuit against the patent infringer. Otherwise, once the other party requests the Chinese Patent Office to declare the utility model or design patent invalid, the utility model or design patent will be declared invalid due to the lack of patentability. Patentability analysis of utility model patent and design patent is best entrusted to China patent lawyer for the same reason as entrusting China patent lawyer to analyze patent infringement. The patentee can only proceed to the next step after confirming that his patent right is valid and patent infringement is established. The so-called next step is to collect evidence first. The evidence that the patentee needs to collect generally includes the following aspects: 1. Evidence about the infringer. As the saying goes, know yourself and know yourself. Therefore, the exact name, address, enterprise nature, registered capital, number of personnel and business scope of the infringer are all things that the patentee should know first. It is very important for the patentee to know what strategies to take to deal with patent infringement. Second, the evidence about the infringement facts. The premise of patent infringement is that there must be infringement. Therefore, in the process of dealing with infringement, it is very important to prove that the infringer has indeed carried out the act of infringing the patent right. These evidences include physical objects, photos, product catalogues, sales invoices, purchase and sale contracts, etc. 3. Evidence about damages. The patentee may claim damages from the infringer. The amount of compensation claimed may be the loss suffered by the patentee. However, the patentee shall provide evidence to prove that the sales volume of his patented product has decreased, or the sales price has decreased, and other expenses have been overpaid or underpaid. The amount of compensation claimed can also be the profits obtained by the infringer due to the infringement. The patentee shall provide evidence to prove the infringer's sales volume, sales time, sales price, sales cost and sales profit, etc. On this basis, the profits of the infringer are calculated. The amount of compensation requested may also be no less than the patent license fee for the patent license transaction between the patentee and the third party. To this end, the patentee should provide a patent license agreement with a third party that has been effectively fulfilled. How to collect the above evidence is a headache for foreign patentees. Generally speaking, the patentee can collect some evidence by himself or by entrusting a joint venture, sole proprietorship or office in China, but the best way is to entrust a patent lawyer in China to conduct infringement investigation and collect evidence. Lawyer China has a lawyer's license, understands the law and is convenient for investigation and evidence collection. As for the exact evidence of the infringer's profit, sometimes it is impossible to get it. In litigation, some rough evidence can be provided first, and after the patent infringement is determined, the court can be requested to audit the accounts of the infringer to determine the infringement profit. Then on this basis, the amount of compensation that the infringer should pay is calculated.
Legal objectivity:
Article 65 of the Patent Law If a patent is exploited without the permission of the patentee, that is, the patent right is infringed. In case of any dispute, the parties concerned shall settle it through consultation. Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).