What are the legitimate source defenses in patent infringement cases?

In many patent infringement cases, producers are usually hidden in the most hidden place in the infringement chain and are not easy to be found. Users and sellers of infringing products are relatively easy to obtain infringement information and fixed infringement evidence, so in many patent infringement cases, users or sellers become defendants or defendants. Users or sellers usually invoke Article 70 of the Patent Law and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes (II) (hereinafter referred to as&; lt； Explanation 2&; gt； ) to defend the relevant provisions. According to the judicial judgment of relevant cases, the author makes a summary and shares it with you from the aspects of the subject of legal defense and the distribution of burden of proof. 1. Relevant laws stipulate Article 70 of the Patent Law: Anyone who uses, promises to sell or sells an infringing patented product for the purpose of production and operation without knowing that it was manufactured or sold without the permission of the patentee shall not be liable for compensation. Article 25 of Interpretation 2: If a patent infringing product is used, promised to be sold or sold for the purpose of production and operation, and it is not known that it was manufactured and sold without the permission of the patentee, and there is evidence to prove the legal source of the product, the people's court shall support the obligee's claim to stop the above use, promised to be sold or sold, unless the user accused of infringing the product proves that he has paid a reasonable consideration for the product. The legal source mentioned in the first paragraph of this article refers to the products obtained through legal sales channels, ordinary sales contracts and other normal commercial means. For legitimate sources, users, promised sellers or sellers shall provide relevant evidence in line with trading habits. According to the above provisions, the legitimate source defense needs to meet three conditions at the same time: first, the defense subject is limited to users, promised sales or sellers; Second, the users and sellers of infringing products subjectively don't know that they are patent infringing products manufactured and sold without the permission of the patentee; Third, infringing products have legal sources. Second, entrusted processing is regarded as production, and the subject who invokes the defense of "legal source" is not qualified. Under the conventional business model, according to the provisions of the Patent Law and related judicial interpretations, as long as the seller promises to sell or buy infringing products through legal commercial means and provide corresponding evidence, there is usually no need to cancel the subject qualification of the "legal source" defense. However, with the refinement of social division of labor, the limitation of market operators' own production capacity, or based on the consideration of business strategy, the production methods of material products are becoming more and more diversified. The production of many products is not limited to single and direct production, but also a large number of indirect production methods such as customization, commissioned processing and commissioned production, and * * * simultaneous production. Instructing others to use their own trademarks on products commissioned for production is easily recognized as the main qualification to show ordinary consumers that they are the producers of products, which is denied by the people's court on the grounds of citing "legitimate sources". Case 1: Hu Qihua, the patentee of design with patent number ZL 20 123062×××. 0 "paper towel holder (F303 1 1)", sued Youpai Company for infringement of its patent right, and Youpai Company argued that the alleged infringing products had a legal source on the grounds of commissioned production. First, the people's court of second instance and the Supreme People's Court both recognized Youpai Company as the producer of the infringing products involved, so it does not have the subject qualification of legal source defense. The referee believes that "Youpai company should bear the legal responsibility of the producer whether it directly produces or entrusts others to produce the alleged infringing products". Therefore, commissioned production is also a kind of production behavior and one of the modes of production in the legal sense. In this case, Youpai Company commissioned an outsider to produce and marked its trademark on the infringing products, so it was relatively easy to identify the identity of the producer. In other entrusted processing or customization, customized transactions, if the accused product has no trademark, but there is evidence to prove that the client has provided detailed technical solutions, product design drawings and other evidence, or signed a quality and technical agreement with the trustee or stipulated strict acceptance standards, it is likely to be recognized by the court as the producer of infringing products, thus losing the subject qualification of the "legitimate source" defense. Source: Non-litigation case, China Judgment Document Network the Supreme People's Court (20 17) Supreme People's Application No.297. Similar case reference: Non-litigation case, China Judgment Document Network Jiangsu Higher People's Court (20 16) Su Min No.604. Third, the burden of proof of subjective "ignorance" The user, promised seller or seller of the infringing product is subjective. "I don't know" is a negative fact in itself. Although there are no laws and regulations that clearly distinguish positive facts from negative facts and allocate the burden of proof accordingly, in the judicial practice of patent infringement cases, the burden of proof of such negative facts is usually assigned to the patentee, and the plaintiff who claims that the patent right has been infringed proves that the defendant "knows" that the accused product is a patent infringement product. If the plaintiff can't prove that the defendant "knew or should have known" that the accused product was a patent infringement product, it is regarded as "unknown". This distribution of burden of proof of negative facts echoes the requirements of protecting the safety and efficiency of commercial transactions in economic activities, because a product may involve hundreds of patents, and users can't objectively determine whether the purchased product infringes the patent rights of others when purchasing products, whether because of limited professional knowledge or time and energy. Similarly, the same is true for sellers, especially those with more circulation links. Reference to similar cases: no litigation case, China Judgment Document Network the Supreme People's Court (20 15) No.2758. The legal source of infringing products should be proved by users or sellers that the alleged infringing products were purchased from regular suppliers at reasonable prices through legal channels, which is the most important part of the defense of "legal source". Generally speaking, the evidence of the legal source of products can be product purchase and sale contracts, agency agreements, purchase orders, delivery notes, inspection sheets, transaction consideration payment vouchers, invoices, etc. Judging from the failure of the defense of legal source, the reasons that can't be recognized by the court are that the basic evidence of product source is missing or contradictory, the patentee can't trace the source of the infringing product because he can't provide the main information of the product, or his identity is vague in the transaction, and finally he can only pay for the infringement of the manufacturer. Of course, it is not excluded that some sellers themselves know that the accused products are infringing products. Case 2: Yangyuan Company is the patentee of design with patent number ZLZL20123039 ××××× "Packing box (walnut milk boutique)". The designed product is used as a carton for filling drinks. The key points of design are modeling and color, and the color requirements of appearance guarantee are protected. The appearance of the packaging box shows that there is a blue ribbon in the middle of the packaging box, and there is a canned beverage in the ribbon, and the canned beverage is printed on the canned beverage. Houyangyuan Company bought "Liuren Walnut Milk" in a supermarket. The appearance of the packaging box shows that there is a blue ribbon in the middle of the packaging box, and there is a beverage box in the ribbon, which is printed with "Liuren Walnut Milk". During the trial, the supermarket claimed that the wholesaler issued the commodity certificate and business license when purchasing goods, and paid the goods normally, but did not provide evidence to prove its defense, which was finally found by the court to be invalid. Source: Non-litigation case, China Judgment Document Network Shandong Higher People's Court (20 17) Lu Min Zhong ZiNo. 109. The special situation of this case lies in the well-known consumer goods patent infringement dispute like this case. From the cognitive level of ordinary consumers, people will doubt the infringement when they see similar products. Therefore, for sellers who know more about the industry status and pay more attention to the source channels of products, we should put higher demands on their subjective cognition and objective behavior, and relevant enterprises should also pay special attention to this. Reference for similar cases: non-litigation cases, China Judgment Document Network the Supreme People's Court (20 15)No. 170 1.