What are the preservation methods of patent infringement evidence?

Patent infringement is a common civil dispute case. Patent infringement can be divided into direct infringement and indirect infringement. Direct infringement. This refers to the act of infringing others' patent rights directly implemented by the actor. What are the preservation methods of patent infringement evidence compiled by intellectual property lawyers for everyone? What are the preservation methods of patent infringement evidence? Judging from the problem of proof, the evidence of patent infringement can be divided into the following categories: (1) evidence of rights. This kind of evidence is mainly used to prove the identity and patent right of the patentee and its stakeholders, including: 1, plaintiff qualification certificate: the natural person is the ID card, and the enterprise or institution is the business license or institution registration certificate. 2. Patent certificate, which proves the ownership status of the patent right when it is authorized. 3. The copy of the patent register is more important evidence than the patent certificate in a sense. It not only records the ownership status of the patent when it is authorized, but also records the changes of the ownership status after the patent is authorized, such as patent transfer and patent being declared invalid. These contents can not be reflected in the patent certificate, but will be reflected in the copy of the patent register, so the copy of the patent register reflects the ownership of the patent better and more truly than the patent certificate. 4. Text of patent authorization announcement: the announcement of invention or utility model includes patent claim, specification, abstract and abstract drawings; The contents of the design announcement are authorized pictures or photos and a brief description. 5. Receipt of annual patent fee: It proves that the patent continues to be valid. Of course, if a copy of the above patent register is provided, the evidence can be omitted. Because in the bottom line of the copy of the patent register, it is indicated that the annual patent fee has been paid to a certain day. In judicial practice, the patentee provides proof of the patent annual fee receipt to show that the patent has paid the annual fee and the patent is still valid. However, in the practice of patent payment in China National Intellectual Property Administration, even if the patent has been declared invalid, or the patent right is terminated due to failure to pay the annual fee, the patent fee can still be paid, so as to obtain a patent annual fee receipt. Therefore, it is not enough to prove that the patent continues to be valid only through the annual patent fee receipt. 6. Patent evaluation report: If a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the administrative department for patent affairs may require the patentee or interested party to produce a patent evaluation report made by the patent administrative department of the State Council after searching, analyzing and evaluating the relevant utility model or design as evidence for hearing and handling the patent infringement dispute. (2) Infringement evidence 1, documentary evidence: (1) Shopping receipt, that is, the purchase of infringing products is the original invoice or receipt; (2) Notarization documents for purchasing infringing products: After the patentee discovers the infringement through market research, in order to better prove the source and characteristics of the infringing products, he can apply to the notary office for notarization of the purchase process, and the notary office will issue a notarial certificate to prove the infringement. 2. Physical evidence: infringing products purchased by the patentee from the market or obtained through court evidence preservation. Infringed products purchased from the market are best sealed and photographed by notaries; Or apply to the court for evidence preservation to obtain infringing products. (3) Loss of evidence In judicial practice, there are very few cases that provide evidence of loss. The objective reason is that this kind of evidence is difficult to prove and the cost of proof is high. However, according to the provisions of the patent law, if the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement; If it is difficult to determine the loss of the obligee or the benefit of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee; The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. Accordingly, the loss can be proved in the following aspects: 1. Financial audit report: when the plaintiff claims to take the losses suffered as the basis of compensation, it can provide financial audit reports on the profit of its own unit products, the total sales volume reduced due to the defendant's infringement or the number of infringing products manufactured by the defendant. The product of the two is the basis of the plaintiff's loss amount; When the plaintiff claims that the defendant's profits are the basis for compensation, the plaintiff usually applies to the court to preserve the defendant's financial accounting books, or determines the defendant's infringing profits with the audit conclusion according to the quantity and price of the products sold, so as to clarify the defendant's compensation basis. In addition, in the compensation request, the plaintiff can provide some auxiliary evidence to prove the defendant's infringement plot and the market value of the patented product, which can be used as a reference factor for the court to determine the specific compensation amount. 2. Patent license contract: The patentee signs a patent license contract with others, and the license fee agreed in the contract is the basis for the claim. Patent licensing contracts become evidence of economic losses. However, when signing a patent licensing contract, it is necessary to have corresponding filing procedures, payment of patent licensing fees and tax payment vouchers. In practice, although the above procedures are met, the licensee has not actually produced the patented product. In this case, the license fee agreed in the contract is not a reference for compensation, because the agreed license fee can no longer objectively reflect the market value of the patent. 3. Attorney's fee bill: The fee for hiring a lawyer due to infringement should be listed as the fee for stopping infringement. In this regard, the Supreme People's Court's "Opinions on Intellectual Property Trial" has clearly pointed out that legal fees that meet the requirements are included in the scope of compensation. What are the preservation methods of patent infringement evidence? There are two main ways to preserve the evidence of patent infringement: (1) notarization preservation. Generally, the patentee and its interested parties apply to a notary office for notarization of the process of purchasing infringing products and the infringing products they purchased, or investigate and notarize the infringing site (such as promising to sell) or the installation place of infringing products to obtain a notarial certificate, thus proving the defendant's infringement. In the process of notarization and evidence collection, the patentee had better take the initiative to ask the seller for the product description, business card, purchase invoice or receipt of the seller of the infringing product, so as to further clarify the producer and seller of the product. At the same time, the patentee may ask the notary office to explain the source and authenticity of the above materials and record them in the notarial certificate. (II) Methods of court evidence preservation The method of court evidence preservation, usually referred to as evidence preservation in the sense of civil procedure law, refers to the system in which the people's court actively collects and fixes the evidence in civil proceedings according to the application of the participants in the proceedings or the functions and powers of the people's court to prevent the evidence from being naturally lost or artificially damaged or being difficult to obtain in the future. There are two forms of evidence preservation: one is evidence preservation before litigation, and the other is evidence preservation during litigation. 1, Pre-litigation Evidence Preservation This is a supplement to the newly revised Patent Law adopted by the Sixth Session of the 11th NPC Standing Committee on February 27th, 2008. It means that in order to stop patent infringement, the patentee or interested party may apply to the people's court for evidence preservation before prosecution under the condition that the evidence may be lost or difficult to obtain later. When the people's court takes preservation measures, it may order the applicant to provide a guarantee; If the applicant fails to provide a guarantee, the application shall be rejected. The people's court shall make a ruling within 48 hours from the date of accepting the application; If it is ordered to take protective measures, it shall be executed immediately. It should be noted that if the applicant does not bring a lawsuit within 15 days from the date when the people's court takes the protective measures, the people's court shall lift the protective measures. 2. Litigation evidence preservation: This mainly refers to the system that after prosecution, the applicant applies to the people's court of our hospital in writing to collect and fix civil litigation evidence in accordance with the procedures and requirements stipulated in the Civil Procedure Law.