Online shopping is convenient and rapid, which makes people ignore the fact that online shopping also needs to go through a series of links to complete. So in the process of online shopping, when is the patent infringement established? Does not receiving the goods affect the trial of patent infringement cases?
Recently, the Beijing Intellectual Property Court concluded a patent infringement case, finding that although the plaintiff did not receive the accused infringing products, the sale contract has been established, and the defendant's sales behavior has also been established. Below, let's take a look at the details of the case
Brief of the case
The plaintiff a glass products company is the patentee of a wine bottle design patent, and the plaintiff believes that the defendant a winery company manufactured and sold a "lightning wine" (referred to as the accused infringing product), and the accused infringing product completely falls within the scope of protection of the plaintiff's patent, constituting a violation of the plaintiff's patent right. The plaintiff applied for evidence preservation notarization on the process of purchasing the accused infringing products. The notarial certificate shows that the plaintiff viewed and purchased the accused infringing products sold in the flagship store operated by the defendant on the JD.com platform, but after payment, the plaintiff did not receive the accused infringing products; The chat records of the plaintiff and the customer service of the flagship store show that after payment, the customer service said that there was a problem with the packaging and it could not be delivered, and the two sides would return the goods after communication. According to the above notarial certificate, the plaintiff requested the court to order the defendant to immediately stop the infringement, compensate the plaintiff for economic losses and pay reasonable expenses, a total of 80,000 yuan.
Patent in question
Beijing Intellectual Property Court held that，For the section of notarial purchase, although the product accused of infringement has not been shipped in the end, but the buyer has paid successfully and the order is established, that is, the sale contract has been established, according to the provisions of Article 19 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Disputes (II), the product sale contract is established according to law. The people's court shall identify the sales as provided for in Article 11 of the Patent Law. Therefore, it can be concluded that the defendant carried out the sales act. In view of the fact that the plaintiff has not submitted the relevant evidence of the defendant's manufacturing of the accused infringing products, it is difficult to determine that the defendant has carried out the manufacturing act. Accordingly, the court found that the defendant had carried out the act of selling the accused infringing products.
Accused of infringing products
Although the plaintiff failed to obtain the actual product of the alleged infringement, the defendant did not propose that the actual product of the alleged infringement was different from the pictures displayed in the store it operated. Therefore, the Beijing Intellectual Property Court compared the patent involved with the pictures displayed in the store operated by the defendant in the notarial certificate, and based on the principle of "overall observation and comprehensive judgment", confirmed that the accused infringing products fell within the scope of protection of the patent involved.
In summary, the Beijing Intellectual Property Court made a judgment, ordering the defendant to immediately stop the infringement, and compensate the plaintiff for economic losses and reasonable expenses totaling 30,000 yuan. After the judgment was made, the parties complied with the court's decision and did not appeal.
Judge's interpretation
The key points of patent infringement trial are to determine whether the accused infringement is established and whether the accused infringement product falls within the scope of protection of the patent involved.This case involves online shopping, and the plaintiff failed to obtain the accused infringing products. According to the facts of this case, whether the defendant constitutes a sales act and how to make infringement comparison are the difficulties of this case.
For online shopping contracts, Article 491 (2) of the Civil Code of the People's Republic of China stipulates that if the commodity or service information released by a party through the Internet or other information network meets the conditions of the offer, the contract is formed when the other party selects the commodity or service and successfully submits the order, unless otherwise agreed by the parties. At the same time, Article 19 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Disputes (II) stipulates that where a product sale contract is established according to law, the people's court shall identify the sale as provided for in Article 11 of the Patent Law. In this case, the flagship store operated by the defendant displayed the unit price, style and parameters of the accused infringing products in detail, and its content was specific and clear. If the plaintiff placed an order successfully, the contract was established, and the defendant's sales behavior was also established.
At the time of infringement comparison, the plaintiff will compare the patent involved with the pictures displayed in the store operated by the defendant as stated in the notarial certificate. At this time, if the defendant raises an objection and thinks that the accused infringing product is different from the above product pictures, the defendant shall bear the corresponding burden of proof. However, the defendant did not raise objections, let alone provide evidence to prove that the accused infringing product was different from the above product pictures, but compared the above product pictures with the patents involved, and put forward the existing design defense, which is sufficient to show that the defendant recognizes that the accused infringing product is the same as the above product pictures. In this case, the above product pictures can be used as the comparison object.
Source: Intellectual Property Beijing
Author: Zheng Da
Beijing Intellectual Property Court
Assistant Judge of Trial Division I
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