I. Evidence of rights
1, plaintiff's qualification certificate, natural person's ID card, business license of enterprise or institution or institution registration certificate.
2. Patent certificate, which proves the ownership status of the patent right when it is authorized.
3, a copy of the patent register. In a sense, the copy of the patent register is more important evidence than the patent certificate, because the patent certificate records the ownership status of the patent when it is authorized. After authorization, the ownership status of the patent may change, such as the transfer of the patent right and the invalidation of the patent. These contents can not be reflected in the patent certificate, but will be reflected in the copy of the patent register, but in practice some patentees have not provided them and some judicial organs have not paid due attention to them.
4. Patent authorization announcement text: Invention or utility model refers to the patent claim, specification, abstract and drawings; Announce the pictures or photos authorized by the design and a brief description.
5. Receipt of annual patent fee: It proves that the patent continues to be valid. In fact, if a copy of the above patent register is provided, the evidence can be omitted. Because in the bottom line of the copy of the patent register, it is indicated that "the annual patent fee has been paid to a certain day." In judicial practice, the patentee provides proof of the patent annual fee receipt to show that the patent has paid the annual fee and the patent is still valid. However, in the practice of patent payment in China National Intellectual Property Administration, even if the patent has been declared invalid, or the patent right is terminated due to failure to pay the annual fee, the patent fee can still be paid, so as to obtain a patent annual fee receipt. Therefore, it is not sufficient and sometimes even wrong to prove that the patent continues to be valid through the annual patent fee receipt. In this way, a copy of the aforementioned patent register is extremely important. The author thinks that the reason why the patent annual fee receipt is used to prove the continued validity of the patent in practice may be influenced by Article 4 of the Supreme People's Court's Provisions on Applicable Laws for Stopping Infringement of Patent Right before Litigation, which stipulates that the patentee shall submit documents to prove the authenticity and validity of his patent right, including patent certificate, patent claim, specification and patent annual fee payment voucher. Here, the patent annual fee payment certificate is one of the true and effective certificates of the patent, but there is no mention of the copy of the patent register, which cannot be said to be a defect.
6. Search report of utility model patent: Article 8 of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Disputes stipulates that if the plaintiff files a lawsuit for infringement of the patent right of utility model, he shall present the search report made by the patent administration department of the State Council at the time of prosecution. Therefore, after the promulgation of the judicial interpretation, many courts refused to accept the patent infringement lawsuit of utility model without providing the search report of utility model. However, this practice obviously does not conform to the provisions of Article 108 of the Civil Procedure Law. Subsequently, the Supreme Court made it clear in its reply to the request of the Beijing Higher People's Court that issuing a search report for utility models is not a condition for bringing a patent infringement lawsuit for utility models. However, if the search report is not provided and the defendant requests invalidation of the patent, and there are no other circumstances that cannot terminate the lawsuit, the people's court shall terminate the lawsuit. On behalf of the plaintiff, the author filed a patent infringement lawsuit for utility model with an intermediate people's court. At the time of filing the case, the judge of the filing court held that the author did not provide the search report of the patent involved and the receipt for paying the annual patent fee, and it was proposed not to accept it. After the author communicated with the judge of the Intellectual Property Court, according to the above provisions, the judge of the Intellectual Property Court called the filing court to accept the case. However, the defendant quickly filed a request for invalidation, and the case was naturally suspended. Therefore, it is best for the plaintiff to provide a search report of the utility model patent when suing to avoid the case being suspended.
Second, the evidence of infringement
1. Documentary evidence: generally notarized. After the patentee discovers the infringement through market research, he will generally apply to the notary office for notarization of the process of purchasing the infringing products and the purchased infringing products, or investigate and notarize the infringing site (such as promising to sell) or the installation place of the infringing products, and obtain a notarial certificate, thus proving the defendant's infringement. In the process of notarization and evidence collection, the patentee had better take the initiative to ask the seller for the product description, business card, purchase invoice or receipt of the seller of the infringing product, so as to further clarify the producer and seller of the product. At the same time, the patentee may ask the notary office to explain the source and authenticity of the above materials and record them in the notarial certificate. In addition, by the way, you should also consider it when choosing a notary office. For example, in provincial capital cities, you can choose provincial notary offices instead of district notary offices. One possibility is that the district notary office lacks experience, and the other possibility is that the district notary office excuses for various reasons out of local protection or fear of retaliation. The author once encountered such a problem when applying for notarization in Tianjin and Zhengzhou, and the district notary office refused to accept it. However, the Tianjin Notary Office and the Henan Notary Office accepted the notarization application in time and conducted evidence preservation notarization efficiently.
2. Physical evidence: infringing products purchased by the patentee from the market. The purchased infringing products are sealed and photographed by notaries. Before submitting it to the court, the plaintiff should ensure that the seal is intact, otherwise the defendant can raise an objection during the cross-examination and refuse to admit the infringing product.
Third, the loss of evidence.
1. Patent license contract: In the current judicial practice, there are few cases that provide evidence of losing the case. The objective reason is that this kind of evidence is difficult to prove and the cost of proof is high. Therefore, a large number of patentees have signed patent licensing contracts with others, and the licensing fees agreed in the contracts are the basis for claiming compensation. Patent licensing contracts become evidence of economic losses. In China, the enterprises taking the lead in patent management usually sign nominal patent licensing contracts with their business departments, go through corresponding filing procedures, pay patent licensing fees and pay tax payment vouchers, but the licensees have not actually produced patented products. In this case, the license fee agreed in the contract should not be used as a reference for compensation. Because the license fee agreed at this time can no longer objectively reflect the market value of the patent.
2. Financial audit report: According to the relevant provisions of the Patent Law, the amount of infringement compensation is determined with reference to the above-mentioned patent license fee, as well as the losses suffered by the obligee or the interests gained by the infringer due to infringement and the legal compensation amount. When the plaintiff claims that the amount of compensation should be based on the losses it has suffered, it shall provide a financial audit report on the profitability of its products, and take the product of the total sales reduction caused by the defendant's infringement or the number of infringing products manufactured by the defendant as the basis of the plaintiff's loss amount; When the plaintiff advocates taking the defendant's profits as the basis for compensation, the plaintiff usually applies to the court to preserve the defendant's financial accounting books, and after being audited by an independent third party, the defendant's infringing profits are determined by the audit conclusion, so as to clarify the basis for compensation for the defendant. Finally, in the statutory compensation, the plaintiff can provide some auxiliary evidence to prove the defendant's infringement plot and the market value of the patented product, which can be used as a reference factor for the court to determine the specific compensation amount.
The above is the relevant knowledge compiled by Bian Xiao for everyone. I believe you have a general understanding through the above knowledge. If you encounter more complicated legal problems, please log on to the lawyer for online consultation.