First of all, China enterprises should conduct relevant intellectual property investigations before exporting their products to the United States. If the possibility of infringement is found, the product should be modified in time, or the infringement should be avoided by replacing non-patented methods. It is reported that the protection of patents in the United States is very detailed, and colors, sounds and even smells can be used as protection objects. In addition, an agreement can be signed with the American importer, and the importer will bear the tort liability, thus passing on the possible risks.
Once sued, Chinese enterprises should not only consider the cost of responding to the lawsuit, but also consider the actual loss and potential loss caused by not responding to the lawsuit. For the "337 investigation" case, not responding to the lawsuit will be the biggest loss and may lose a huge potential market. When responding to the lawsuit, China enterprises can argue that their products have not infringed the patent right of the other party. This is because in the United States, the specific scope of patent protection is recorded in the claims, which may have one or more technical elements. Only when all the technical elements in the claim involve related imported products can infringement be judged, otherwise it is not infringement. In addition, whether a patent right is really effective in the "337 investigation" depends on ITC to make a final judgment, so China enterprises can also sue their opponents for patent rights being invalid or unenforceable.
Compared with foreign mature enterprises, China enterprises are not familiar with the current "rules of the game" in international trade, so they have been in a passive position in the "337 investigation" in the United States. Even if they can finally settle, they will pay high tuition fees because we have no chips. Therefore, relevant experts remind China enterprises to enhance their awareness of intellectual property rights, patent rights and trademark rights, and pay special attention to the regionality of intellectual property protection. In other words, if the export volume of products is large, it is best to apply for intellectual property protection in the other market, so that once we encounter a lawsuit involving intellectual property rights, we also have chips to exchange with our opponents, and the threshold for settlement can be lower.
"In any case, if you come up, you can't surrender," said lawyer Sun. When China enterprises first faced the anti-dumping investigations of the United States and the European Union, they also experienced a process from panic to active response. Now, faced with the menacing "337 investigation", China enterprises should no longer act as "slow reaction forces". It is easier to lose the market than to seize it.