When the defendant has patent infringement, the first thing to do is to counterclaim that his patent is invalid. Whether it is appearance, utility model or invention patent, this move needs to be taken, which is the most basic and preferred defense strategy and measure for the defendant. When the patent is declared invalid, the infringement is naturally not established. Even if it is still in the process of invalid trial, it can also play an offsetting role. First of all, if the evidence and reasons for requesting invalidation pose a threat to the plaintiff's patent, the court will usually suspend the lawsuit; If the Patent Reexamination Board has made an invalid decision, the court may even suspend the lawsuit, and it is possible that the original and the defendant have reached a settlement agreement in the process of invalidation. Patent invalidation should not be limited to the "three characteristics" of patents, but should be broadened. Recently, many patents have been invalidated for violating other provisions of the patent law for your reference and consideration.
Second, evidence is used to turn defeat into victory.
Evidence often has two sides. The plaintiff can use a piece of evidence to prove his favorable view, and the defendant can also use the same evidence to prove his favorable view. Using the other party's evidence to prove that he has not infringed, he can often win by surprise and get an unexpected unique effect of turning defeat into victory In the same invalid or patent litigation case, you can directly find the evidence that is beneficial to you from the evidence or statement provided by the other party, you can also use the other party's evidence in invalid infringement litigation, or use the evidence of infringement litigation in patent invalidation declaration, or use other invalid or litigation evidence of the same patent in this case. There is usually no question that the plaintiff denies the authenticity and legality of the evidence, because the evidence is provided by the plaintiff, as long as you express your opinions on the relevance of the evidence. I often use evidence to win many patent infringement lawsuits, and have achieved very good litigation results.
Third, look for defects to save the situation.
If a patent lawsuit has changed hands several times before it reaches you, you, as a patent lawyer or an agent of patent invalidation request, have fought many battles before suing another new enterprise. The original defendant has used a lot of evidence and reasons to defend, but none of them can succeed. Don't take the old road at ordinary times, but look for flaws from other aspects and find new breakthroughs. At the same time, we should be good at using old evidence to prove new reasons and new viewpoints. The used evidence proves that the old viewpoint is not good, and it is also good to prove the new viewpoint from another angle. In the patent infringement dispute case of TCL-related double-barrel washing machine, I successfully found a new flaw in the patent document-the claim was successful without the support of the manual, which made the enterprise save the day and successfully defended it. The demoulding inclination declared in the claim is1:100-1:500, while the demoulding inclination given in the specification is1:100-1:150
Fourth, try to shrink its authority.
Whether a patent constitutes infringement is usually protected by the independent claim in the patent claim, but the definition of the protection scope of the right cannot be completely defined from the text of the patent claim. Plaintiffs usually try to define the scope wider, while defendants try to narrow the scope of protection of plaintiffs. Without completely denying the plaintiff's patent, we might as well try this method. The scope of patent protection can be limited by consulting the plaintiff's reply to Patent examiners's one-way communication and two-way communication during the examination, or by the plaintiff's reply to the invalid request to protect his own patent, or by looking for relevant information in the specification or evidence in other related lawsuits. If the scope is narrowed, the defendant's way will be wider, and it may not be infringing, or it will jump out of the scope of protection after a few changes.
The verb (abbreviation for verb) confirms that action is the first step.
The so-called confirmation lawsuit refers to the fact that an enterprise that may become a patent defendant of another person directly files a lawsuit with the court, demanding to confirm whether the product or method it produces constitutes patent infringement, or indirectly achieves the effect of confirming that it does not constitute infringement by using the prior patent of another person, so as to invalidate the subsequent patent request. To bring a lawsuit to the court for confirmation usually requires a premise, that is, the plaintiff brought disadvantages to the potential defendant by sending a lawyer's letter with his patent or taking some warning hints in the market competition, but the patentee did not bring an infringement lawsuit. At this time, he can first file a lawsuit with the competent court for confirmation. In addition, in the name of an individual, the patent of the former can be used to deny the patent of the latter. If the decision made by the Patent Reexamination Board is to keep the latter patent valid, there are two situations: first, the latter patent is established, but it still constitutes an infringement of the previous patent; Second, the patent was established, which jumped out of the scope of protection and did not constitute infringement. Although the Patent Reexamination Board will not make such confirmation directly, it can sometimes introduce the effect of confirming non-infringement from the decision of patent invalidation.
Sixth, build a plank road and sneak into Chencang.
In order to accuse the defendant of infringement, the plaintiff usually tells all the favorable evidence, while the defendant's defense needs to provide some evidence, and some do not need to provide direct evidence. In particular, some arguments against the plaintiff's evidence need not be put forward in evidence exchange or cross-examination. The plaintiff is always in the light first, and the defendant is relatively in the dark. Some viewpoints and arguments are exposed to the plaintiff prematurely before or at the beginning of the court session, which will give the plaintiff a chance to re-prove or try to remedy. Only in the middle or final debate of the court session or in the opinions of the agency will they be discussed in more detail, with better results. It is best to guide the plaintiff to express some opinions first, then refute what the plaintiff said, let the plaintiff say his original intention first, and then the plaintiff can't go back on his word. Before the trial, the defendant's views can be publicly expounded on some basic issues, so that the plaintiff mistakenly thinks that this is an important defense opinion of the defendant. Only in the trial, can some arguments be directly proved without evidence, or explained with the evidence already handed in, so that the opponent is caught off guard and easily gives in.
Seven, reverse thinking skillfully break the fast knot
Sometimes, in order to win a patent lawsuit, the plaintiff will sue a small enterprise first, and then sue other enterprises after winning the case. At this point, the plaintiff's patent has not only passed the patent invalidation test, but also the edge of the recovered patent is extremely sharp. In addition, the court has made a final judgment on similar or even identical products. At this time, the defendant's defense is very difficult, because it is impossible for him to file a retrial, and it is generally impossible for him to make an opposite judgment in the same court, so the defendant should find another way. At this time, through the defense of reverse thinking, unexpected results may be achieved. I received a patent lawsuit from Shenzhen enterprise against Wuxi enterprise in Foshan Intermediate People's Court. The plaintiff's patent has four independent rights. As long as any right is infringed, the closest comparison document has been used after invalid inspection, and the stability of the patent is good. Moreover, the first instance of Guangzhou Intermediate People's Court and the second instance of Guangdong Higher People's Court have made infringement judgments on the same products of Wuxi enterprises. After the first trial of Foshan Intermediate People's Court, the second trial will go to Guangdong High Court. In other words, this is a case that the plaintiff seems to be in the bag, so the plaintiff boldly took evidence preservation and property preservation for Wuxi enterprises, and the claim amount was as high as 5 million. As a defendant, in order to prove that he does not constitute infringement, he does not directly compare products, but in turn proves that his products are deburred from the formation process of products. However, the products produced by the plaintiff's patent are burr-preserved or burr-added, that is, they are formed by the completely opposite principle to the defendant's patent, and the defendant cannot constitute infringement, so it won the support of the court of second instance, and the final judgment does not constitute infringement.
Eight, actively respond to the lawsuit and find another way out.
The compensation for patent litigation is limited, but it is often fatal for the defendant to stop the infringement. If the product or method is found to constitute infringement, we should actively respond to the lawsuit and strive to improve the technology and find another way out. Actively responding to the lawsuit can not only be understood as whether it constitutes an infringement defense, but more importantly, we should learn lessons, strive to improve technology, turn passivity into initiative, turn pressure into motivation, improve or introduce new technology while responding to the lawsuit, and let enterprises have independent intellectual property rights. Foshan Rifeng was sued by enterprises in Taiwan Province Province. In the process of responding to the lawsuit, under the guidance of lawyers, he tried to improve the technology, bypassed the scope of patent protection, and formed a more advanced patent technology than the plaintiff's patent. This is one of the coping strategies that the defendant enterprise should have.
Nine, fully defend the opportunity to talk about peace
Some judges always ask whether the two sides have a desire for reconciliation before the trial, and they will ask again after the trial. As a patent defendant, you don't have to win It is not necessarily a good thing for the defense to choose the opportunity to make peace after putting some pressure on the plaintiff. Both parties can withdraw the lawsuit in the patent invalidation and infringement lawsuit, or they can pay part of the compensation as appropriate and obtain permission to continue production in part. Even if there are sufficient reasons to deny the plaintiff's patent, if the plaintiff is willing to settle, it is not necessary to deny his patent, because after the settlement between the two parties, the plaintiff's patent is actually indirectly owned by the defendant. It is not a bad thing for the plaintiff not to sue you, but to say goodbye to others. Judging from the actual game, it is still a good thing.
Ten, another case to force him to withdraw the lawsuit.
In patent infringement litigation, if the defendant believes that the patent sued by the plaintiff constitutes infringement, he can try to find the plaintiff's defects and try to file a lawsuit again. This lawsuit can be unfair competition, copyright infringement or patent infringement. Even if you don't have a patent, if you have a patent before the plaintiff, you can try to get a license or even get it, and then sue the plaintiff for infringement. This can sometimes play a better defense effect. For example, in the case of intellectual property infringement dispute between Huawei and Cisco, I successfully assisted Huawei in actively preparing another case to sue Cisco. With the efforts of Huawei itself and others, Cisco finally shook hands with Huawei, reached a settlement and dropped the lawsuit. Similarly, in the case of Yulong v. Haier v. firewall copyright, Yulong sued Haier for patent infringement in turn, and finally the two sides reached a settlement and dropped the lawsuit.