If it is not a real infringement, then you need to prepare a lot of things and collect relevant evidence, such as the notice of acceptance or trademark registration certificate of the trademark you use, the publicity or advertising materials of your own trademark, and the invoices for goods entering and leaving.
What about the product defendant's patent infringement?
1. Judge whether the patent involved is invalid, and file a request for invalidation within the time limit specified by the court.
2, review the implementation of the technology is within the scope of protection of the patent involved, based on the sample, to apply for a patent as a stamina.
When judging whether the patent involved is valid, the infringement suspect should also analyze whether the technology he implements belongs to the protection scope of the patent. Therefore, it is necessary to reasonably determine the scope of patent protection and correctly apply the rules for judging patent infringement, such as comprehensive coverage rule, equivalent substitution rule and estoppel rule. If, after judging by applying the rules of patent infringement, it is considered that it does not belong to the scope of patent protection, the suspect of infringement may put forward the defense that his behavior does not constitute infringement.
Even if the accused infringer thinks that the technology he implemented belongs to the protection scope of the patent involved through analysis, the accused infringer can still raise the defense of the known technology if he has evidence to prove that the technology he implemented belongs to the known technology.
In addition, the accused infringer is the user or seller of the patented product. If the accused infringer does not know that the product is an infringing product and can prove that the product has a legal source, he can only assume the responsibility to stop the infringement and be exempted from the responsibility to compensate for the losses.
3. Negotiate and negotiate with the patentee in time.
After receiving the warning letter from the patentee; The accused infringer actively collected evidence and comprehensively studied and analyzed relevant technical issues. On the other hand, we should negotiate with the patentee in time, strive for a lower amount of damages, or resolve disputes in other ways that we think are beneficial, such as obtaining the patentee's implementation license or cross-license.
It should be pointed out that the work of collecting evidence and comprehensively studying and analyzing related technical problems done by the infringement suspect before negotiating with the patentee is of great significance for gaining the initiative in negotiation. For example, through technical analysis, the infringement suspect thinks that the patent involved may be declared invalid, which can be used as a bargaining chip to obtain favorable negotiation results.
4. Respond positively.
If the patentee brings a lawsuit to the people's court on an infringement dispute, the suspected infringer shall actively respond to the lawsuit. The accused infringer, that is, the defendant, must first review the relevant legal issues. For example, whether the plaintiff is qualified; Whether the prosecution is within the statute of limitations; Whether the people's court of the place where the case is accepted has jurisdiction; And so on, so as to decide whether we can put forward the defense of subject qualification, the defense of limitation of action or the objection of jurisdiction.
Secondly, the defendant can file a request for invalidation with the Patent Reexamination Board during the defense period, and persuade the judge to decide to suspend the lawsuit through detailed analysis of technical problems in the defense. The suspension of litigation is of great significance for protecting the interests of the defendant.
Legal basis:
People's Republic of China (PRC) Civil Code
Article 184 stipulates that if the property of another person is infringed, the property loss shall be calculated according to the market price at the time of the loss or other reasonable means.
Article 187 stipulates that after the damage occurs, the parties may negotiate the payment method of compensation fees. If negotiation fails, the compensation fee shall be paid in one lump sum; If it is really difficult to pay in one lump sum, it can be paid by installments, but the infringed party has the right to request the corresponding guarantee.