First, the process of patent infringement litigation
1, establishment of plaintiff's agent
(1) Review customer qualifications.
According to Article 57 1 of the Patent Law, only the patentee or interested party can bring a lawsuit to the people's court for patent infringement.
The patentee refers to an individual, legal person or other civil subject who has obtained the patent right according to law.
Stakeholder refers to the person who has an interest in the patent except the patentee when the patent is infringed, that is, the licensee of patent exploitation.
The licensee who exclusively implements the licensing contract may file a patent infringement lawsuit separately; The licensee who exclusively implements the licensing contract may independently file a patent infringement lawsuit without being sued by the patentee; Unless otherwise agreed in the license contract, the licensee who generally implements the license contract can only file a patent infringement lawsuit with the plaintiff as * * * together with the patentee.
(2) judging the stability of patent right
Before bringing a patent infringement lawsuit to the court, the plaintiff should judge the stability of the patent and see if it may be declared invalid.
In addition to analyzing the stability of patent rights relative to the existing technology, it is also necessary to analyze whether there are other defects in patent documents and whether these defects can be overcome in invalid procedures.
(3) Collection of evidence of infringement
2. Preparation of the defendant's agent
(1) Analyze whether the implementation behavior of the client belongs to the scope of patent protection;
(2) To judge the stability of patent right and see whether the plaintiff's patent may be declared invalid.
(3) Collection of evidence
Second, the patent infringement litigation evidence
It is particularly important for the obligee to choose the most favorable and feasible method of obtaining evidence according to the specific circumstances of the case. The main ways are as follows:
1, collect evidence by himself and entrust a lawyer to investigate and collect evidence.
2. Apply to the notary office for evidence preservation.
3. Apply to the court for evidence preservation before litigation.
4. Apply to the people's court for evidence.
5. Apply to the administrative organ for investigation and evidence collection.
Third, the strategy to deal with patent infringement.
1, using reconciliation or mediation. If you really infringe the patent right of others, and you still want to implement the patented technology, the wisest way is to offer a settlement with the other party. If the patentee has filed a lawsuit, he can also take the initiative to propose a mediation plan in court and try to reach a mediation agreement with the other party. If a settlement or mediation can be reached, it is more ideal for both parties to sign a patent licensing contract. This can achieve a win-win situation. Only when the conditions put forward by the patentee are so harsh that the court thinks that they can't meet their requirements, do they advocate solving disputes through court decisions.
2. It can be refuted. If you confirm that your company has no infringement at all, you must refute it. In some cases, what appears to be infringement in form actually belongs to the infringement exception of Article 63 of the Patent Law, and the infringement can be accused and refuted according to law.
In practice, it happens from time to time that the transferee of a patent licensing contract is accused of patent infringement by a third party. In this case, the transferee can put forward the defense that the patented technology it implements is transferred from the transferor. If the transferor of the license contract takes the defendant as the * * * party in the infringement lawsuit, it will find out the facts and reduce the tort liability.
3. Use the patent invalidation procedure. This patent right was approved by China National Intellectual Property Administration in accordance with legal procedures. In the process of examination and approval in China National Intellectual Property Administration, it is impossible to conduct an absolutely comprehensive and strict review. At the same time, there are other subjective and objective reasons, which make it inevitable that a very small number of approved patents do not meet the conditions stipulated in China's patent law. Patent right is produced by legal presumption, and its stability is slightly poor. In this case, in order to ensure the public's interests, the patent laws of various countries have stipulated remedial measures, that is, the patent invalidation procedure.
Hope to adopt ~