1, establishment of plaintiff's agent
(1) Review customer qualifications.
According to Article 60 of the Patent Law, the patentee or interested party may 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 fatal 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 client's implementation behavior falls within 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.
Even if the accused infringer thinks that the technology he implemented belongs to the protection scope of the patent involved through analysis, the accused infringer can still raise the defense of the known technology if he has evidence to prove that the technology he implemented belongs to the known technology. In addition, the accused infringer is the user or seller of the patented product. If the accused infringer does not know that the product is an infringing product and can prove that the product has a legal source, he can only assume the responsibility to stop the infringement and be exempted from the responsibility to compensate for the losses.
3. Negotiate and negotiate with the patentee in time.
After receiving the warning letter from the patentee; The accused infringer actively collected evidence and comprehensively studied and analyzed relevant technical issues. On the other hand, we should negotiate with the patentee in time, strive for a lower amount of damages, or resolve disputes in other ways that we think are beneficial, such as obtaining the patentee's implementation license or cross-license. It should be pointed out that it is of great significance for an infringement suspect to collect evidence and comprehensively study and analyze relevant technical issues before negotiating with the patentee. For example, through technical analysis, the infringement suspect thinks that the patent involved may be declared invalid, which can be used as a bargaining chip to obtain favorable negotiation results.
Legal basis:
law of the people's republic of china on the protection of intellectual property rights
Article 45 Anyone who commits one of the following acts of infringement shall bear civil liabilities such as stopping the infringement, eliminating the influence, publicly apologizing and compensating for the losses according to the circumstances:
(1) publishing his work without the permission of the copyright owner;
(2) publishing a work created in cooperation with others as a work created by oneself without the permission of a co-author;
(three) did not participate in the creation, in order to seek personal fame and fortune, signed other people's works;
(4) distorting or tampering with other people's works;
(5) Using a work by means of performance, broadcasting, exhibition, distribution, shooting, video recording, adaptation, translation, annotation or editing without the permission of the copyright owner, except as otherwise provided by this Law;
(six) the use of other people's works, not in accordance with the provisions of the payment;
(seven) live broadcast of their performances without the permission of the performers;
(eight) other acts of infringement of copyright and copyright-related rights and interests.
Article 46 Anyone who commits one of the following acts of infringement shall, according to the circumstances, bear civil liabilities such as stopping the infringement, eliminating the influence, publicly apologizing, and compensating for losses, and may be given administrative penalties such as confiscation of illegal income and fines by the copyright administrative department:
(1) Plagiarism and plagiarism;
(2) reproducing and distributing his works for profit without the permission of the copyright owner;
(3) publishing books with exclusive publishing rights enjoyed by others;
(four) without the permission of the performer, recording and publishing his performance;
(five) without the permission of the producer of audio and video recordings, reproducing and distributing the audio and video recordings made by him;
(six) unauthorized reproduction and distribution of radio and television programs produced by radio stations and television stations;
(seven) the production and sale of counterfeit works of art..