After discovering patent infringement, you can directly file a lawsuit with the relevant court after the evidence is fixed, or you can choose to file a complaint with the department in charge of patent work. This way is called patent administrative law enforcement. Compared with litigation, the threshold of administrative law enforcement is relatively low, so the scope of application is relatively wide.
Generally speaking, administrative law enforcement can be used to protect rights under the following circumstances:
1. Infringement was found, but no evidence was obtained.
For example, it is found that a factory has a large number of infringing products, but the infringing products only engage in foreign trade, not domestic sales and retail, so it is difficult to fix the infringing products in the mainland as evidence. At this time, you can complain to the patent work department. After accepting the case, the staff of relevant departments come to the infringement site with administrative law enforcement certificates, and can consult and copy the contracts, account books and other relevant documents related to the case when investigating and collecting evidence; Questioning the parties and witnesses; Conduct on-site inspection by means of measurement, photography and video recording. Respondents can be invited to give a live demonstration; Evidence can also be preserved by sampling or registration and preservation. Infringement evidence is extracted by administrative law enforcement organs, and such evidence can also be adopted by the court after prosecution.
2. I hope to defend my rights quickly and stop the infringement as soon as possible.
At present, in the judicial system, the trial period of the first-instance judicial judgment is generally six months, while the administrative law enforcement is generally closed within three months from the date of filing the case. In time, administrative law enforcement has certain advantages.
3. There is no special requirement for compensation.
In administrative law enforcement, the patent administration department can only determine whether it constitutes infringement, and make a decision to stop the infringement on this basis, but can not directly make a decision on the amount of infringement compensation. Therefore, in the process of patent administrative law enforcement, even if the infringement is confirmed, the patentee cannot obtain economic compensation from the infringer, unless, of course, the infringer takes the initiative. After the patent administration department makes a decision to stop the infringement, it may give corresponding punishment.
Second, online complaints.
1. It depends on whether the infringed patent is an invention patent, a utility model patent or a design patent. If it is a utility model or design patent, it is necessary to provide a patent evaluation report issued by the State Patent Office before the e-commerce platform will accept the complaint;
2. A clear infringement comparison table shall be provided, listing which technical points of our patent claim are included in the other party's products, or which designs and design patents are the same in shape, pattern and color; And give the judgment of whether the same infringement is equivalent infringement or approximate infringement.
3. Achievable effect: After the infringement is confirmed, the back-office intellectual property acceptance department of e-commerce will remove the infringing products and delete the infringing links. It can also promote reconciliation between the two sides.
Third, the exhibition complaints
With the prosperity of China's economy, more and more enterprises will choose to participate in exhibitions as a platform for sales or procurement. Once the infringing products are found on display, the patentee needs to complain about the exhibition to safeguard his legitimate rights and interests.
There are two prerequisites for making exhibition complaints.
A. verify whether the exhibition has set up an intellectual property complaint platform.
B. If an intellectual property complaint platform is set up, you can directly complain to the exhibition organizer with the main qualifications such as business license, patent certificate and annual fee receipt.
Fourth, the customs for the record
Verb (abbreviation of verb) infringement warning letter