1. Who will bear the legal costs of intellectual property infringement?
Cases of infringement of intellectual property rights such as copyright, trademark exclusive right and patent right. The obligee may regard the fee for hiring a lawyer as a reasonable expenditure requirement for safeguarding rights, which shall be borne by the infringer.
(1) According to the provisions of Article 48 of the Copyright Law and the Trademark Law, the amount of compensation for infringement of copyright or trademark exclusive right includes the reasonable expenses paid to stop the infringement.
(2) Article 17 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes stipulates that the reasonable expenses paid for stopping the infringement as stipulated in Article 56 of the Trademark Law include the reasonable expenses paid by the obligee or entrusted agent for investigating and collecting evidence of infringement; The people's court may, according to the claims of the parties and the specific circumstances of the case, calculate the lawyer's fees that meet the requirements of the relevant state departments within the scope of compensation.
(3) Article 26 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes stipulates that the reasonable expenses paid for stopping the infringement as stipulated in the first paragraph of Article 48 of the Copyright Law include the reasonable expenses paid by the obligee or entrusted agent to investigate and collect evidence of infringement. The people's court may, according to the litigant's claims and specific cases, calculate the lawyer's fees that meet the requirements of the relevant state departments within the scope of compensation.
(4) Article 22 of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases stipulates that if the obligee claims to have paid a reasonable fee for stopping the infringement, the people's court may separately calculate the compensation according to the amount determined in Article 65 of the Patent Law.
The two parties clearly agreed in the contract that the lawyer's fee shall be borne by the losing party.
According to the principle of freedom of contract, as long as both parties agree in the contract that the lawyer's fee shall be borne by the losing party, the lawsuit request about lawyer's fee will generally be supported in prosecution or arbitration. Therefore, lawyers suggest that both parties to the contract can list the lawyer's fees as compensation for breach of contract when drawing up the contract, and even specify the way and standard of bearing the lawyer's fees in detail. When drafting such a breach of contract clause, special attention should be paid to clearly stating "lawyer's fees". Others, such as the "fees for realizing creditor's rights", are not clear and may not be supported by lawyer's fees. The court's examination of this agreement is very strict. The plaintiff must submit the entrustment contract signed with the law firm and the lawyer's fee invoice issued by the law firm as evidence to pay the lawyer's fee. But how much specific support depends on the judge's discretion. According to the nature of the case, the court will usually support the "reasonable" lawyer's fee, not the full fee.
Two, the identification of patent infringement mainly includes the following aspects:
(1) The infringing object shall be a valid patent with a patent right in China. First of all, in view of the regional nature of patent rights, valid patents generally refer to patents authorized by China National Intellectual Property Administration. Secondly, in view of the timeliness of the patent right, only within the specified protection period, the patent right that has not expired due to payment, invalidity, abandonment and other reasons is a valid patent. It should be noted that if a patent right is declared invalid for some reason, it is regarded as nonexistent from the beginning, so even if someone else has implemented it before, it is not patent infringement.
(2) there are illegal acts. That is, the actor has the behavior of exploiting the patent for profit without the permission of the patentee.
It should be noted that the patent law stipulates five kinds of behaviors that are not regarded as infringement, which are exceptions to patent tort liability. If the actor can't provide evidence as a defense, it shall be deemed to constitute patent infringement and bear the responsibility according to law.
(3) The actor is subjectively at fault. The subjective fault of the infringer includes intention and negligence. Intention means that the actor knows that his behavior is an act of infringing others' patent rights and implements it; The so-called negligence refers to the behavior that the actor infringes the patent right of others because of negligence or overconfidence. However, there are exceptions, such as the second paragraph of Article 63 of the Patent Law, which stipulates that even if the actor is subjectively innocent, it constitutes patent infringement, but he will not be liable for compensation.
(four) should be for the purpose of production and operation. Article 11 of the Patent Law stipulates that after an invention-creation is granted a patent right, no one may exploit the patent unless otherwise provided for in this Law, and the exploitation shall not be for the purpose of production and operation. Therefore, the purpose of production and operation should also be one of the constitutive requirements for judging patent infringement.
The administrative scope of intellectual property infringement cases is the people's court where the first infringement case is located. If general intellectual property rights are infringed, you can complain to the intellectual property management department. If the circumstances are serious, you can bring a lawsuit to the court to safeguard your legitimate rights and interests. Investigate the criminal responsibility of the relevant infringers.