A careful examination of these warning letters shows that some of them are issued to protect the infringed legitimate rights and interests, but there are also some warning letters, or the sender simply knows that the other party has no infringement, or the sender does not have a legal patent right, just to crack down on the counterparty and destroy the goodwill of others in order to gain a dominant position in the market. Therefore, if we don't interfere with the unfair competition of some manufacturers in the name of patent infringement at all, then all manufacturers active in the market may suffer unfair injustice because of the false accusation of others, which will bring serious business consequences (for example, the share price of listed companies has plummeted because of this unfavorable news), and these serious consequences are quite unfair to businesses suspected of infringement, especially those who have legal patents and have no infringement facts at all. Therefore, how to distinguish and judge various warning letter behaviors has become the first step for us to deal with such behaviors.
In China, the warning letter itself does not have the mandatory effect of arbitration award or court ruling. The warned party may completely ignore it. Therefore, many patentees and even lawyers entrusted by them believe that as long as they have issued warning letters to these operators who use or sell infringing products, or published public "warning statements" in newspapers and other media, they can at least prove to the court in the future that these warned people "already know that they are facing infringing products" after receiving and seeing the warning letters, so that they can be held liable for compensation.
According to the judicial practice of the court in handling similar cases, the author thinks that the warning letter should have the following contents:
1. The warning letter shall indicate the identity of the patentee, including the source of rights: whether the application is authorized, whether the transfer is authorized and whether it is recognized by the patentee.
2. The warning letter shall specify the specific situation of the patent, including: the name and type of the patent, the time of obtaining the right, the effectiveness of the patent and the contents of the patent right. Moreover, the patent documents authorized by the announcement (including patent certificates, claims, specifications and drawings) shall be attached to the patent warning and sent to the warned person.
3. Because China's authorization of utility model invention does not need to undergo substantive examination, therefore, the patentee of utility model should also attach a search report made by the patent administrative department of the State Council in the warning letter, and should clarify his conclusion after patent search in the warning letter.
4. The warning letter shall specify the specific circumstances of the infringement by the warned person (such as manufacturing, or selling, or promising to sell, or using, etc.). ), including the name, model and price of the product;
5. In the warning letter, the characteristics of the accused product shall be briefly summarized and compared with the patent claim to make it clear that the accused product belongs to the scope of patent protection.
6. The warning letter shall inform the warned person of the time limit for replying to the warning letter.
7. The warning letter shall inform the warned person that the infringement of patent right must be stopped immediately, and clarify the legal responsibilities that the warned person will bear, as well as the specific provisions of the Patent Law, the detailed rules for the implementation of the Patent Law and relevant judicial interpretations.
8. The sending method of the warning letter should be based on the purpose of obtaining the sending certificate, which is very important to prove whether the obligee sends the warning letter.
In the course of litigation, the obligee provides a warning letter that meets the above contents, and the court will serve as an important basis for judging whether the defendant intentionally infringes.
Therefore, the warned person who received the above warning letter must not ignore it, and should contact and communicate with the right holder or his representative who issued the warning with the assistance of his lawyer. Otherwise, it will be difficult to get rid of the accusation of "knowing infringement" in future trials.