Plaintiff: Zhejiang antelope medical equipment co., ltd.
Legal Representative Hu Junfei, Baishuiyang Village, Linhai City, Zhejiang Province
Agent: Jiang Wei, Chen Zihao.
Defendant: Zhejiang Kangkang Medical Equipment Co., Ltd.
Su Wei, legal representative.
Agent Wu Yong,
The third person: Wang Shiying.
Presiding judge: Examining the identity of the original defendant, agent and third party.
Presiding Judge: Do members of the collegial panel apply for withdrawal?
Plaintiff: No.
Defendant:No..
Presiding Judge: Do you know the rights and obligations?
Plaintiff: Zhi
Defendant: Zhi
Presiding judge: formal hearing
Plaintiff: Look at the complaint. Request: stop the infringement, stop selling unsold products, compensate for the loss of 654.38 million yuan, apologize publicly, and the defendant will bear the investigation and lawyer's fees and litigation costs.
Defendant: 1. Duplicate patent authorization is invalid. The utility model patent belongs to the same category as the invention, and the utility model patent is earlier because its invention profit should be invalid. 2. After knowing the plaintiff's utility model patent, there is no obligation to know the existing invention patent.
Presiding judge: Does the third party have any comments on the statement of the original defendant?
Third person:No. 。
Presiding Judge: According to the statements of both parties, the focus of this case is summarized as follows: 1. Whether utility model and invention patent constitute repeated authorization; 2. The utility model and the invention patent conflict with each other, resulting in one party being invalid.
Presiding Judge: Do the plaintiff, the defendant and the third party have any objections?
Plaintiff:No..
Defendant:No..
Presiding Judge: This is the stage of court investigation. First, the plaintiff will provide evidence.
Plaintiff: Evidence number. 1 Prove legal identity. On page 3, the intellectual property certificate No.602 19 proves that the third party in this case, Wang Shiying, is legally authorized by China National Intellectual Property Administration. The copy of the patent registration on page 4 proves that Wang Shiying transferred all the above patent rights to the plaintiff, claiming the legitimacy of our rights, so the products produced by our company were authorized by a third person, Wang Shiying.
Presiding Judge: Does the defendant have any objection?
Defendant: 1. No objection to identity. 2. There is no objection to the form of the right certificate, but the right is flawed.
Plaintiff: The technical features of the defendant's product completely covered the plaintiff's, and the invoice proved the separate profit of the product, and the tax payment certificate proved the profit, lawyer's fee invoice and transportation fee.
Defendant: Item 4. Item 5: Evidence: The tax payment certificate cannot infer the profit of our needle production. Item 6: The evidence has no objection to the lawyer's fee invoice. Because the transportation and accommodation expenses are unknown, we don't think it can be used as legal and valid evidence.
Presiding Judge: Does the plaintiff have any evidence?
Plaintiff: Yes.
Presiding judge: whether to submit it to the court within the defense period.
Plaintiff: Yes.
Presiding Judge: Please state.
Plaintiff: 1. Patent transfer contract. 2. Invoice presented by Wang Shiying. 3. Notarization acceptance notice issued by the notary office: the contract transfer has been notarized. The contract between them sent by Kangkang Company to Wang Shiying will be implemented until February 28th, 2004.
Presiding Judge: Is there?
Defendant: There is no evidence. 1-4 has nothing to do with this case, and does not change the fact that the right is flawed. It was made by our company before February 28, 2004, no doubt.
Presiding Judge: Please ask the defendant to give evidence.
Defendant: The first evidence and the second evidence prove our identity as the subject and legal agent.
Presiding Judge: Will it be submitted to the court?
Defendant: In court.
Defendant: The fourth copy belongs to the State Patent Office, which proves that the patent right of Wang Shiying has expired.
Presiding Judge: Any objection?
Plaintiff: No objection to the identity certificate, but objection to the fourth copy. If there is a conflict between the utility model patent and the invention patent, the former shall be revoked.
Defendant: At present, the fact is that the utility model patent has not been revoked. Fifth, prove that the invention patent belongs to repeated authorization. Prove that the invention patent should be invalid.
Trial: Don't you agree?
Original: Yes.
Be: Sixth, the technology transfer contract between Wang Shiying and Kangkang Company. Through this contract, we can only know that the other party has utility model patents, but we don't know that there are conflicting invention patents. Therefore, we have no subjective intention.
Trial: Don't you agree?
Yes, this contract is not a right transfer contract, but a technology license contract.
Be: Ours is a technology license contract, but it doesn't affect our claim.
Trial: Whether both parties have new evidence for the court's reference.
Original: No.
Bei: No.
Trial: The court investigation stage is over. Do you have any objections to the key points?
Original: No.
Bei: No.
Third person:No. 。
Trial: Now enter the stage of court debate. First, the exact words.
As we can see, it is no problem that Wang Shiying's inventions have been repeatedly patented. According to Article 13 of the Detailed Rules for the Implementation of the Patent Law, only one patent can be granted for the same invention, and according to the provisions of the Intellectual Property Office, it shall be chosen by the parties concerned. Therefore, we can draw the following conclusion: because the right is granted repeatedly, the utility model and invention patent are different because of different procedures. There is no case that the patent will be invalid because of the late authorization, and it will not lead to the patent entering the public domain. In particular, the defendant's production was unauthorized after 65438+February 28, 2004, which is an infringement.
Defendant: We disagree with the internal regulations of the Intellectual Property Office, and the plaintiff should not have the right to choose. The utility model patent expired in August 2004, and the right has expired. The transfer of ownership is meaningless. When the plaintiff obtained two rights, he had enough time to choose to give up his rights, but he did not make a request. The consequences caused by this should not be borne by our company.
The third person: I don't know the patent law. I applied legally according to the state regulations, and there are no problems in form and procedure. After both passed, I have no reason to think that there is something wrong with the authorization of the Intellectual Property Office. I can't understand this question, but repeated authorization should not be the focus of this case.
Defendant: Our ignorance of the third party should not be an excuse.
The third person: I just follow the habit.
Original: We think that the regulation of the Intellectual Property Office is because the patent law has not made detailed provisions on this issue, and the Intellectual Property Office, as the administrative department, can issue such questions. We believe that the new patent can still request the revocation of the suspended or abandoned patent. We think that the third party has signed a contract with us, and the third party has expressed the intention of giving up.
Be: We think it is in conflict with 13 ... The revocation needs to go through administrative procedures, and cannot take effect on the basis of civil consciousness.
I don't think there is a conflict of laws here. After the invalidation, the invention patent right still exists and should be protected.
Be: We suspect that the invention patent itself is flawed.
The explanation that we consider the third person has practical significance.
Third Party: As I have said, the legality of this law is mainly aimed at the censorship department, and this problem should be the administrative department's problem. I need to emphasize whether there is duplicate authorization. As a third party, I don't think this case should be direct.
Be: We have no malicious infringement.
Wang Shiying signed a five-year contract with the defendant. There are problems in continuing production after the end of the contract.
Bei: Our production these days is based on contracts.
Respondent: We believe that the plaintiff had no subjective intention to produce during the period from February 28, 2004 to the prosecution, and the plaintiff had no intention to agree or disagree.
We give up the requirement to give up the loss of products produced during this period.
Review: Do you want to save the change requirements?
Original: Yes.
Trial: Ask the third party if there is any notice about the choice of two rights.
Third person:No. 。
Audit: Has the invention patent right of Kangkang Company been transferred during production?
Third person:No. 。
Trial: Did the transferee know there was a patent conflict between the third parties at that time?
Original: No.
Trial: Is the defendant authorized to improve your product?
Bei: No.
Judge: Are there any questions?
Original: No.
Bei: No.
Trial: the plaintiff's final statement.
Our basis is legal and valid. We demand that the defendant stop the infringement and bear all the litigation costs.
Trial: The defendant made a final statement.
Be: The request for judgment is invalid because the behavior state of repeated authorization is not supported by law. We have no subjective fault and there is no reason to bear the litigation costs.
Trial: third party statement.
Third person: Fax is a practical model. I have no reason to doubt that the rights granted by the administrative department cannot coexist.
Trial: Are you willing to mediate?
number
Bei: No.
Signature of both parties: