In many patent infringement cases, manufacturers usually hide in the most hidden parts of the infringement chain and are not easily discovered. It is relatively easy for users and sellers of infringing products to obtain infringement information and fix infringement evidence. Breakthrough, so users or sellers become defendants or one of the defendants in many patent infringement cases. Users or sellers usually invoke Article 70 of the Patent Law and relevant provisions of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes (hereinafter referred to as Interpretation II) to defend themselves. Based on the judicial decisions of relevant cases, we will make a summary to share with you from aspects such as the subject of legal source defense and the distribution of the burden of proof. 1. Relevant legal provisions Article 70 of the Patent Law: For production and business purposes, using, offering to sell, or selling a patent-infringing product that is not known to have been manufactured and sold without the permission of the patentee can prove the legal origin of the product. , does not assume liability for compensation. Article 25 of "Interpretation 2": If for production and business purposes, a patent-infringing product is used, offered for sale, or sold without the knowledge that it was manufactured and sold without the permission of the patentee, and evidence is provided to prove the legal origin of the product, the rights will be The People's Court shall support a person's request to cease the above-mentioned use, offer for sale, and sale, unless the user of the accused infringing product provides evidence to prove that he has paid a reasonable consideration for the product. The term "legal sources" as mentioned in the first paragraph of this article refers to the acquisition of products through normal commercial methods such as legal sales channels and ordinary sales contracts. For legal sources, users, prospective sellers or sellers should provide relevant evidence that complies with transaction practices. According to the above provisions, the legal source defense needs to meet three conditions at the same time: first, the defense subject is limited to the user, the person offering to sell or sell the product; second, the user or seller of the infringing product subjectively does not know that it is without the permission of the patentee. The patent infringing products are manufactured and sold; third, the infringing products have legal sources. 2. Entrusted processing is regarded as production, and the subject citing "legitimate source" as a defense is not eligible. Under the normal business model, in accordance with the provisions of the Patent Law and relevant judicial interpretations, the seller promises to sell or the seller only needs to purchase the infringing product through legal commercial methods. And provide corresponding evidence to prove that it usually does not raise the issue of the ineligibility of the “legitimate source” defense subject. However, with the increasingly detailed division of labor in society, the limitations of the production capacity of market operators, or based on business strategy considerations, the production methods of material products are becoming more and more diversified. The production of many products is not limited to individual and direct production. The only way is that there are a large number of indirect and contract production methods such as customization, commissioned processing, and commissioned production. For instructing others to use one's own trademark on commissioned products, it is easy to be regarded as indicating to ordinary consumers that one is the producer of the product, and the people's court will deny the subject's qualifications to invoke the "legitimate source" defense. Case Facts 1: Hu Qihua, the design patentee with patent number ZL20123062××××.0 “Tissue Holder (F30311)”, sued Youpai Company for infringement of his patent rights. Youpai Company defended the accused infringing product on the grounds of commissioned production. Legal sources. The First and Second Instance People's Courts and the Supreme People's Court both determined that Youpai Company was the manufacturer of the infringing products involved in the case, and therefore did not have the subject qualifications for legal source defense. The referee held that "no matter whether Youpai Company directly produces the accused infringing product itself or entrusts others to produce the accused infringing product, it shall bear the legal responsibility of the manufacturer." Therefore, commissioned production is also a production behavior and one of the production methods in the legal sense. In this case, Youpai Company entrusted a third party to produce and put its trademark on the infringing products, making it relatively easy to determine the status of the manufacturer. In other entrusted processing or customized or custom-made transactions, if the accused product does not have a trademark, but there is evidence that the principal has provided detailed technical plans, product design drawings and other evidence, or has signed a quality technical agreement or agreement with the entrusted party With strict acceptance standards, it is also likely that the court will identify the manufacturer of infringing products and lose the subject qualifications for the "legitimate source" defense. Case sources: Unlitigated cases, China Judgment Document Network, Supreme People's Court (2017) Supreme People's Court Civil Application No. 297. References to similar cases: Cases without litigation, China Judgment Document Network Jiangsu Provincial Higher People's Court (2016) Su Minzhong No. 604.

3. The burden of proving subjective “not knowing” is that the users, offers to sell or sellers of infringing products subjectively “don’t know” that the patent infringing products are manufactured and sold without the patentee’s permission. What are the subjective facts of “not knowing”? Proof, how is the burden of proof distributed? "I don't know" itself is a negative fact. Although there are no laws and regulations in my country that clearly distinguish positive facts from negative facts and allocate the burden of proof accordingly, the judicial practice of patent infringement cases usually allocates the burden of proof for this negative fact to For the patentee, the plaintiff claiming that the patent right has been infringed shall provide evidence to prove that the defendant "knew" that the accused product was a patent-infringing product. If the plaintiff cannot prove that the defendant "knew or should have known" that the accused product was a patent-infringing product, the defendant will be deemed to be "a defendant." have no idea". The allocation of the burden of proof for this negative fact echoes the requirements to protect the safety and efficiency of commercial transactions in economic activities, because a product may involve hundreds or thousands of patents. When a user purchases a product, whether it is due to restrictions on professional Knowledge is still limited by time and energy, and it is objectively impossible to identify one by one whether the purchased products infringe the patent rights of others; the same is true for sellers, especially those with many circulation links. References to similar cases: No-litigation cases, China Judgment Documents Network, Supreme People's Court (2015) Min Shen Zi No. 2758 4. The legal source of the infringing product should be proved by the user or seller that the alleged infringing product is through legal channels. Legal channels for purchasing accused infringing products from regular suppliers at reasonable prices are the most important part of establishing the defense of "legitimate sources". For "legitimate sources", according to "Interpretation 2", "relevant evidence that is consistent with transaction habits should be provided." According to the provisions, it can be seen that the formal requirements for the evidence to be produced are relatively broad and are not limited to a certain model. Generally speaking, evidence of the legal source of a product can be a product purchase and sales contract, agency agreement, purchase order, delivery order, inspection order, transaction consideration payment voucher, invoice, etc. Judging from the cases where the legal source defense fails, the reasons that usually cannot be recognized by the court include the lack of basic evidence of the source of the product or the evidence is conflicting, the inability to provide the owner's main information prevents the patentee from tracing the source of the infringing product, or the patentee cannot trace the source of the infringing product. Identity in the transaction is blurred, and the manufacturer ends up paying for the infringement. Of course, it does not rule out that some sellers themselves know that the accused products are infringing products. Case Facts 2: Yangyuan Company is the design patentee of the patent number ZL20123039×××× “Packaging Box (Walnut Milk Premium Type)”. The design product is used as a carton for filling beverages. Its design The key points are the shape and color, and the appearance of the guarantee letter is required to protect the color. The appearance of the packaging box shows: a blue streamer is in the middle of the packaging box. There are filled beverage cans in the ribbon, and "six walnuts" are printed on the beverage cans. Hou Yangyuan Company purchased "Six Kernel Walnut Milk" in a supermarket. The appearance of the packaging box showed: a blue ribbon was placed in the middle of the box, and a drink box was set in the ribbon. "Six Kernel Walnut Milk" was printed on the drink box. During the trial, the supermarket claimed that the wholesaler issued a product certificate and business license when purchasing goods, and that it paid the price normally, but did not provide evidence to prove its defense. The court ultimately found that the legal source defense was not established. Case sources: Unlitigated cases, China Judgment Document Network Shandong Provincial Higher People's Court (2017) Lu Minzhong No. 109. The special situation of this case lies in the high-profile patent infringement disputes for daily consumer goods like this case. Starting from the cognitive level of ordinary consumers, seeing similar products will raise doubts about infringement. For those who know more about the status of the industry and are more professional Sellers should be subject to higher requirements on their subjective cognition and objective behavior, and should exercise a higher duty of care and attention on the source channels of products. Relevant companies should also pay special attention to this. References to similar cases: Cases without litigation, China Judgment Document Network Supreme People's Court (2015) Minshen Zi No. 1701