(1) Procedures and steps of application. According to the provisions of the Civil Procedure Law on hierarchical jurisdiction and territorial jurisdiction and the Supreme People's Court's Several Provisions on Applicable Laws for Stopping Patent Infringement before Litigation, the applicant's application for stopping patent infringement shall be submitted to the people's court with jurisdiction over patent infringement cases. When applying for property preservation, it shall also provide corresponding property guarantee.
(2) Relevant materials submitted by the applicant.
1. The application shall specify the parties and their basic information, the specific content, scope and reasons of the application. The reasons for the application include specifying that the legitimate rights and interests of the applicant will be irretrievably damaged if the relevant acts are not stopped in time.
2. Evidence materials.
(1) When applying, the patentee shall submit documents proving the authenticity and validity of his patent right, including patent certificate, patent claim, specification and patent annual fee payment certificate. Where the application involves a patent for utility model, the applicant shall submit a search report issued by the patent administration department of the State Council.
(2) Where an interested party applies, it shall provide the relevant patent licensing contract and the certification materials filed with the patent administrative department of the State Council. If no application is filed, the certificate of the patentee or other evidence to prove his rights shall be submitted.
(3) If the licensee who exclusively implements the licensing contract applies separately, it shall submit the certification materials that the patentee gives up the application.
(4) Where an heir to the patent right applies, he shall submit the evidence materials that have been inherited or are being inherited. When several applicants appeal, in addition to providing relevant certificates and evidential materials, they should also provide evidence that the respondent is carrying out or will carry out acts infringing on its patent right. Including the comparative materials of accused infringing products and patented technologies and the technical characteristics of accused infringing products, thus forming a complete chain of evidence. If the patentee or interested party has sufficient evidence to prove that his patent right has been infringed, he shall bring a lawsuit to the people's court in time if the measures to stop the patent infringement before litigation are ineffective. When bringing a lawsuit, it is necessary to clarify the scope, jurisdiction and limitation of action of patent infringement cases.
(1) jurisdiction. Hierarchical jurisdiction: Cases of patent disputes of first instance shall be under the jurisdiction of the intermediate people's courts where the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are located and the intermediate people's courts designated by the Supreme People's Court. Territorial jurisdiction: A lawsuit brought for patent infringement shall be under the jurisdiction of the people's court of the place where the infringement occurred or the defendant's domicile. Infringements include:
1. The place where the act of manufacturing, using, promising to sell, selling or importing the product accused of infringing the patent right of invention or utility model is carried out;
2. The place where the patented method is used, and the place where the products directly obtained according to the patented method are used, promised to be sold, sold and imported;
3. The place where the patented product of design is manufactured, sold and imported;
4. The place of implementation of counterfeiting others' patents; The place where the infringement result of the appeal infringement occurs. The plaintiff only brought a lawsuit against the manufacturer of the infringing product, but not against the seller. Where the place of manufacture of the infringing product is different from the place of sale, it shall be under the jurisdiction of the people's court of the place of manufacture; Where producers and sellers are sued as co-defendants, the people's court at the place of sale has jurisdiction. The seller is a branch of the manufacturer, and if the plaintiff sues the manufacturer of infringing products for manufacturing and selling at the place of sale, it shall be under the jurisdiction of the people's court at the place of sale.
(2) Limitation of action. The limitation of action for patent infringement is two years, counting from the date when the patentee or interested party knows or should know about the infringement. If the obligee has filed a lawsuit for more than two years, and the infringement is still going on when the lawsuit is filed, the people's court shall order the defendant to stop the infringement within the validity period of the patent right, and the amount of infringement damages shall be calculated within two years from the date when the obligee files a lawsuit with the people's court.
(3) Claims for compensation for patent infringement.
1. According to Article 60 of the Patent Law, there are several ways to calculate the amount of compensation for patent infringement:
The first method: according to the actual losses (including direct losses and indirect losses) suffered by the obligee due to infringement.
The second method: the benefits obtained by the infringer due to infringement.
If it is difficult to determine the two ways of appealing, the third way can be adopted. With reference to the patent license fee, according to the category of the patent right, the nature and circumstances of the infringer's infringement, the amount of the patent license fee, the nature, scope and time of the patent license, and with reference to the patent license fee of 1 to 3 times, reasonably determine the amount of compensation requested;
If there is no patent license fee for reference or the patent license fee is obviously unreasonable, the amount of compensation can generally be determined by the people's court according to the type of patent right and the nature and circumstances of the infringement by the infringer, ranging from 5,000 yuan to 300,000 yuan, with the maximum not exceeding 500,000 yuan.