With the enhancement of people's legal awareness, many people have strengthened the protection of all their patents. Once they find that there is infringement of their patents in reality, they will sue to the court and defend their legitimate interests through legal channels. So what are the skills in patent infringement litigation? Please read the following for details.
(1) in-depth study of patented technology
Patent litigation is highly technical, so it is very important to study, analyze and thoroughly understand patent technology and related background technology. Patent litigation requires lawyers to understand not only the legal provisions and relevant provisions, but also the patented technology. If you don't know the law, you can't fight a lawsuit, and if you don't know the patent technology, you can't be competent for patent litigation. It is impossible to solve the problems related to patent litigation only from the legal provisions, especially in determining whether a technology constitutes infringement, whether it belongs to known technology, whether it belongs to obvious technology and so on. These all require considerable technical knowledge. It is difficult to be competent in patent litigation without learning patent technology, so in-depth study of patent technology is the premise of successful patent infringement litigation.
(2) Fixed evidence of infringement
For lawyers of plaintiffs and patentees, the most important thing is to collect evidence of infringement. It is important to buy infringing products, but some infringing products are counterfeit products of others, and the manufacturers mentioned above are not necessarily real infringing manufacturers. Therefore, it is best to go directly to the manufacturer to buy products suspected of infringement, take notarization for evidence collection (hide evidence collection when necessary), or obtain evidence of infringement by the way when performing other duties through the administrative department for industry and commerce or the technical supervision department. Obtaining the evidence of infringement and the amount of infringement is the key to the plaintiff's success.
(C) Clever use of pre-litigation injunction
Article 6 1 of the Patent Law stipulates that if the patentee or interested party has evidence to prove that others are committing or about to commit acts infringing on his patent right, and if it is not stopped in time, it will cause irreparable damage to his legitimate rights and interests, he may apply to the people's court for measures ordered to stop the relevant acts and property preservation before bringing a lawsuit. Almost all patentees are very concerned about the issue of pre-litigation injunction, because the effect of pre-litigation injunction is very strong, and almost all patentees hope that the infringer can stop the infringement before litigation through pre-litigation injunction.
To apply for pre-litigation injunction, two conditions must be met: first, the evidence of infringement must be conclusive and clear, and the judgment of infringement must be obvious and convincing; Second, there must be evidence to prove it. If the pre-litigation injunction is not taken, it will cause irreparable losses, and it is difficult for most cases to meet the latter condition.
(4) Reasonably determine the compensation amount.
According to the author's practice, it is not recommended that the parties make excessive claims for damages in litigation. Article 60 of the Patent Law stipulates that the amount of compensation for infringement of patent rights shall be determined according to the losses suffered by the obligee or the interests gained by the infringer due to infringement; If it is difficult to determine the loss of the infringer or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee.
Article 20 of the Supreme People's Court's Provisions on the Applicable Law in the Trial of Patent Disputes stipulates that when the people's court investigates the infringer's liability for compensation according to Article 57, paragraph 1 of the Patent Law, it may determine the amount of compensation at the request of the obligee according to the losses suffered by the obligee or the interests gained by the infringer due to infringement.
The losses suffered by the obligee due to infringement can be calculated by multiplying the total sales volume of the patented product of the patentee due to infringement by the reasonable profit income of each patented product. If it is difficult to determine the total number of sales reduced by the obligee, the product of the total number of infringing products sold in the market multiplied by the reasonable profit of each patented product can be regarded as the loss suffered by the obligee due to infringement.
The benefits obtained by the infringer due to infringement can be calculated by multiplying the total number of infringing products sold in the market by the reasonable profit income of each infringing product. The benefits obtained by the infringer due to infringement are generally calculated according to the operating profit of the infringer, and can be calculated according to the sales profit for the infringer who is completely engaged in infringement.
Article 1 of judicial interpretation
Article 2 1 stipulates that it is difficult to determine the infringer's loss or the infringer's interest, and the people's court can reasonably determine the compensation amount with reference to 1 to 3 times of the patent license fee according to the type of patent right, the nature and circumstances of the infringer's infringement, the amount of patent license fee, the nature, scope and time of patent license, etc. If there is no reference to the patent license fee or the patent license fee is obviously unreasonable, the people's court may, according to factors such as the type of patent right, the nature and circumstances of the infringer's infringement, generally determine the amount of compensation between RMB 5,000 and RMB 300,000, and the maximum amount shall not exceed RMB.
0.50 million yuan
Judging from the current practice of patent trial in China, it is not beneficial to the parties except for news hype to propose high damages. Because it is too difficult to prove according to the provisions of China's current patent law and the calculation method of compensation, most of the compensation for patent infringement cases is discretionary compensation by the court, and the upper limit of discretionary compensation is 500 thousand yuan. Therefore, to claim a loss of tens of millions of yuan, in addition to paying high legal fees, the actual compensation that can be obtained in the end will be far from the figures put forward.
In many patent infringement cases, it is more appropriate to propose appropriate damages. According to our analysis, the amount of patent damages is generally around 200,000 yuan to 300,000 yuan, which is more favorable as a lawsuit request.
No matter what kind of litigation, the provision of evidence is very important. If the court wants to support your claim, then the evidence you provide must be true and sufficient. The above is the content of patent infringement litigation skills, I hope it will help you. If you still have questions about this, you can call our online lawyer directly.