First, how to obtain evidence of patent infringement

1, collect evidence by himself and entrust a lawyer to investigate and collect evidence.

Due to the strong professionalism of intellectual property cases, it will be difficult for the obligee to obtain evidence by himself, and it is very difficult to accurately grasp the direction and scope of obtaining evidence. Lawyers specialize in legal work and provide legal services to the society as their profession.

Lawyers not only have rich legal knowledge, but also have rich experience in handling cases and skilled litigation skills, and can make appropriate choices for the parties at different stages of litigation. Generally speaking, it is much more convenient for lawyers to investigate and collect evidence than the parties, and the scope of evidence collection is more extensive and accurate. In judicial practice, judges often treat lawyers differently and provide more convenience.

2. Apply to the notary office for evidence preservation.

One of the statutory businesses of the notary office is to "preserve evidence". Notarized evidence has the effect of presumption of truth. The people's court shall confirm the validity of notarized legal acts, legal facts and documents. However, unless there is enough evidence to the contrary to overturn the notarial certificate. The evidence preservation of notary office has the same effect as that of the court ex officio. Before litigation, the parties can make full use of the notary office to collect and preserve evidence, which is an effective measure to make good preparations before litigation.

3. Apply to the court for evidence preservation before litigation.

Where laws and judicial interpretations provide for the preservation of evidence before litigation, such provisions shall prevail. This establishes a legal basis for the parties or interested parties to apply to the court for pre-litigation evidence preservation.

4. Apply to the people's court for evidence.

The people's court shall investigate and collect evidence that the parties and their agents cannot obtain on their own due to objective reasons, or evidence that the people's court considers necessary for hearing a case. Based on this, when the parties file patent infringement, trademark infringement and copyright infringement lawsuits, they often apply for evidence collection.

Second, the role of patent infringement litigation

It is an important way for the obligee to file a patent infringement lawsuit with the court to effectively crack down on patent infringement and safeguard rights. Compared with the administrative complaint submitted to the Intellectual Property Office, it has the following characteristics:

1, you can claim for compensation and effectively make up for the loss. In administrative treatment, the Intellectual Property Office can only impose administrative punishment on the infringer, but can't give compensation. The court may judge the infringer to compensate the obligee for the loss according to the litigation request and infringement evidence submitted by the obligee.

2. The judgment or ruling is final. If a party refuses to accept the administrative ruling made by the Intellectual Property Office, it may bring an administrative reconsideration or an administrative lawsuit, and the judgment or ruling after the first and second trial procedures of the court shall be final.

Third, what about patent infringement?

1. settlement through negotiation: the patentee and the alleged infringer can reach a settlement agreement through self-negotiation or mediation by other third parties to resolve the dispute. Generally, a warning letter of infringement can be sent to the infringer when the negotiation intention is put forward, but the warning letter has a deterrent effect and is not legally binding.

2. Administrative investigation: The patentee can report to the Patent Office and other relevant administrative departments when he has the preliminary evidence, and they will take administrative measures to investigate and verify the infringer's infringement and determine whether it is infringement. In the process of administrative investigation, the relevant patent administrative departments may mediate the civil liability for patent infringement according to the application of the relevant parties.

3. Bring a lawsuit to the court: The patentee may also bring a civil lawsuit to the relevant people's courts such as the place where the infringement occurred and the place where the defendant is located, demanding that the infringement be stopped and economic losses be compensated.

Legal objectivity:

Evidence is very important for the determination of a case. If there is no strong evidence to prove that the other party infringes the patent right, then their legitimate rights and interests will not be protected by law. According to the law, if the patent right is infringed, the infringement shall be stopped, the illegal income shall be confiscated, the losses of the patentee shall be compensated and a fine shall be imposed. If the circumstances are serious enough to constitute a crime, criminal responsibility will be investigated according to law. It is particularly important for the obligee to choose the most favorable and feasible evidence collection method according to the specific circumstances of the case. The main ways are as follows: 1. It will be difficult to grasp the direction and scope of evidence collection by yourself and entrusting lawyers to investigate and collect evidence by themselves. Lawyers specialize in legal work and provide legal services to the society as their profession. Lawyers not only have rich legal knowledge, but also have rich experience in handling cases and skilled litigation skills, and can make appropriate choices for the parties at different stages of litigation. Generally speaking, it is much more convenient for lawyers to investigate and collect evidence than the parties, and the scope of evidence collection is more extensive and accurate. In judicial practice, judges often treat lawyers differently and provide more convenience. 2. Apply for evidence preservation by a notary public. One of the statutory businesses of notaries is "preserving evidence". Notarized evidence has the effect of presumption of truth. Article 59 of the Civil Procedure Law stipulates: "The people's court shall confirm the validity of notarized legal acts, legal facts and documents. However, unless there is enough evidence to the contrary to overturn the notarial certificate. " The evidence preservation of notary office has the same effect as that of the court ex officio. Before litigation, the parties can make full use of the notary office to collect and preserve evidence, which is an effective measure to make good preparations before litigation. 3. Apply to the court for pre-litigation evidence preservation. Article 25 of the Supreme Court's Provisions on Several Issues of Evidence in Civil Litigation in 2002: "If there are provisions in laws and judicial interpretations on the preservation of evidence before litigation, such provisions shall be followed." This establishes a legal basis for the parties or interested parties to apply to the court for pre-litigation evidence preservation. The judicial interpretation of the Supreme Court, which was implemented on June 5438+ 10, 2002, stipulates that trademark infringement cases may apply for pre-litigation evidence preservation. Article 1 6 of Several Provisions on Applicable Laws for Stopping Patent Infringement before Litigation, which was implemented by the Supreme Court on July12006, also stipulates the preservation of evidence before litigation. Article 1 of the Interpretation on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Disputes, which was implemented by the Supreme Court on June 5438+00, 2002, stipulates that "the people's courts shall accept the following copyright civil disputes", one of which is "applying for pre-litigation property preservation and pre-litigation evidence preservation cases". Evidently, evidence preservation before litigation exists in a large number of intellectual property infringement cases. After taking protective measures, the parties or interested parties shall bring a lawsuit within the statutory time limit. If no lawsuit is brought to the court, such preservation measures shall be lifted, or relevant evidence shall be destroyed or returned, and the applicant shall also bear the losses caused thereby. 4. Apply to the people's court for evidence collection. Article 64 of China's Civil Procedure Law stipulates that the people's court shall investigate and collect evidence that the parties and their agents cannot obtain on their own due to objective reasons, or evidence that the people's court considers necessary for hearing a case. Based on this, when the parties file patent infringement, trademark infringement and copyright infringement lawsuits, they often apply for evidence collection. The evidence obtained is usually divided into three categories: one is to preserve the accused infringing products; Second, investigate the financial books of the alleged infringement unit to determine the amount of compensation; Third, collect the evidence of the alleged infringer's infringement. According to the provisions of the Civil Procedure Law and the judicial interpretation of the Supreme Court, there are two ways for the court to investigate and collect evidence: one is to take the initiative to investigate and collect evidence according to its authority. Involving facts and related procedural matters that may harm national interests, social public interests or the legitimate rights and interests of others, the court shall take the initiative to investigate and collect evidence according to its functions and powers, without the need for the parties to file an application for evidence collection. The second is to collect evidence according to the application of the parties. After the scope of the court's initiative to obtain evidence is narrowed, it is becoming more and more important for the parties to apply for evidence investigation. If there is a lack of timely application for evidence investigation by the parties, the court will generally not take the initiative to investigate the evidence. Whether the court starts the investigation and evidence collection mechanism after the parties file an application for evidence investigation depends on the court's review and judgment. Only when the application submitted by the parties meets the scope of evidence collection by the court, the court has the obligation to investigate and collect evidence, otherwise the court shall reject the application. When the parties apply for court investigation and evidence collection, they should pay attention to two points: first, the scope of evidence applied for investigation must conform to the legal situation; Second, this application must pay attention to the time limit for proof. The usual measures taken by the court are to take photos of the accused infringing products that are easy to obtain, or to record the technical characteristics of the accused infringing products, and to seal up and extract the easily obtained account books and trademarks, while the financial account books of the accused infringer are often extremely difficult to obtain because of the obstruction or concealment of the infringer. 5. Apply to the administrative organ for investigation and evidence collection. Chapter V of China's Patent Administrative Law Enforcement Measures has special provisions on investigation and evidence collection. In the process of investigating and handling cases, the department in charge of patent work may, if necessary, investigate and collect relevant evidence according to its functions and powers. You can check it