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How do I file a patent infringement lawsuit?

Release Time：

2020-04-01

Patent infringement litigation is a highly specialized legal activity, it is recommended to complete with the assistance of professional lawyers and patent agents.

For patent infringement liability, the starting elements mainly include the following aspects: the object of infringement should be in our country enjoys the patent right of valid patents; there are violations of the law exists, that is, the perpetrator without the permission of the patentee, there is the implementation of patents for the purpose of profit; the perpetrator of the subjective fault; should be for the purpose of production and management.

(1) Determine the validity of one's patent right.

The patentee shall carefully search and investigate the prior art before filing the infringement lawsuit, and on this basis, analyze whether the patent has the possibility of being declared invalid and the size of the possibility. If through the search and analysis, that the patent right may be declared invalid, the way to take litigation need to be particularly cautious. At this time, you can consider negotiating with the other party to appropriately reduce the amount of compensation or license fee, so as to both preserve the patent and obtain appropriate compensation.

(2) Identify the perpetrator and the choice of defendant.

In the case of multiple infringement, the selection of specific defendants should consider the risk of litigation, the difficulty of evidence, the calculation of loss and other factors. Infringement of the longest, the most egregious infringement of the infringer is not necessarily listed as the defendant, but can choose the most sufficient evidence of infringement, infringement of the amount of profit is clear and the strength of the infringer is not strong.

(3) estimation of damages.

The amount of compensation for infringement of patent rights in accordance with the rights of the actual losses suffered by the infringer to determine; the actual loss is difficult to determine, can be determined in accordance with the infringer due to infringement of the benefits gained. The loss of the right holder or the infringer gained benefits is difficult to determine, with reference to the patent license fee multiplier reasonably determined. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement. The loss of the right holder, the infringer gained benefits and patent license royalties are difficult to determine, the people's court may, according to the type of patent, the nature and circumstances of the infringement and other factors, to determine to give more than 10,000 yuan to 1 million yuan of compensation.

(4) Collection of evidence.

When the patentee learns that his rights have been infringed, one of the most important things is to collect evidence in time. Mainly includes the following aspects of evidence:

(1) evidence about the situation of the suspected infringer, including its name, address, nature of the enterprise, registered capital, number of personnel, scope of business and so on;

(2) Evidence about the infringing facts, including physical objects of infringing goods, photos, product catalogs, sales invoices, purchase and sales contracts, etc;

(3) Evidence of damages related to infringement, including the sales volume, sales time, sales price, sales cost and sales profit of the allegedly infringing products.

(5) Consultation and negotiation with the alleged infringer.

Patent infringement litigation is a means rather than an end, through this means, the right holder wants to achieve the direct purpose is generally the infringer to stop infringing, to obtain infringement compensation and so on. If the purpose of the right holder can be achieved through consultation and negotiation, the lawsuit can be withdrawn in order to save the cost of enterprises to protect their rights.

(6) Selection of the court of jurisdiction.

The first instance cases of patent disputes are under the jurisdiction of the Intermediate People's Courts in the places where the people's governments of the provinces, autonomous regions and municipalities directly under the central government are located, as well as some of the Intermediate People's Courts designated by the Supreme People's Court. In addition, the Supreme People's Court has also designated a small number of pilot Basic People's Courts to have jurisdiction.

On the basis of hierarchical jurisdiction, territorial jurisdiction shall also be taken into account, and the court of the place of infringement and the court of the defendant's domicile shall have jurisdiction over the lawsuits filed for infringement of patent rights. Among them, the place of infringement, including the place of infringement and the place of sale of infringement is inconsistent, the people's court of the place of manufacture shall have jurisdiction; with the manufacturer and the seller as co-defendants, the people's court of the place of sale shall also have jurisdiction. The seller is a branch of the manufacturer, the plaintiff in the sale of infringing products in the sale of the manufacturer to sue the manufacture, sale of behavior, the people's court of the place of sale also has jurisdiction.

(7) pre-suit provisional measures.

Patent law provides for infringement of patent rights of pre-litigation provisional measures system, used to stop the infringement behavior in a timely manner, to prevent infringement or infringement of the consequences of deterioration. Therefore, before filing a lawsuit requesting the court to take measures to order the suspected infringer to stop the relevant behavior.

(8) Timing of prosecution.

In order to minimize the damage of the infringement, the earlier the better the timing of the lawsuit. Of course, the premise is to have done a comprehensive preparation for litigation, collect sufficient evidence. If the patent litigation as a means of hitting the strategic purpose of the enterprise, then you can choose other most favorable to their own strategy timing.

Source: China Intellectual Property Rights Defense Assistance Network

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