Patent infringement cases apply the basic elements of ordinary civil infringement cases, that is, the behavior is illegal and produces damaging consequences, there is a causal relationship between the two, and the perpetrator is at fault. At the same time, patent infringement cases also have their own particularities, which are particularly noteworthy when both parties submit their respective evidence. The plaintiff’s evidence and proof 1. Evidence of rights 1. Proof of the plaintiff’s qualifications, including the identity certificate of the natural person, the business license of the enterprise or institution, or the registration certificate of the institution. 2. Patent right certificate, proving the ownership status when the patent right was granted. 3. A copy of the patent registration book. In a certain sense, a copy of the patent registration book is more important evidence than the patent certificate, because the patent certificate records the ownership status of the patent when it is authorized. After authorization, the ownership status of the patent may Changes may occur, such as the transfer of patent rights, the patent being declared invalid, etc. These contents will not be reflected on the patent certificate, but will be recorded on a copy of the patent registration book. In litigation, this evidence is often ignored by parties or agents. 4. The text of the patent authorization announcement is different for different patent announcements. For inventions or utility models, the claims, description, abstract and abstract drawings are included; for designs, the pictures or photos authorized by the announcement and a brief description are included. The text of the patent announcement can clearly reflect the scope of patent protection and have direct probative power for the fact of infringement. 5. Patent annual fee receipts can prove that the patent continues to be valid. In fact, this evidence does not need to be provided if a copy of the aforementioned patent registration book is provided. Because the bottom line of the copy of the patent registration book will indicate “the annual fee for this patent has been paid until such day of such month and year”. In judicial practice, the patentee provides proof of patent annual fee receipts to prove that the patent annual fees have been paid and that the patent continues to be valid. However, in the patent payment practice of the State Intellectual Property Office, even if the patent has been declared invalid, or the patent rights have been terminated due to failure to pay the annual fee, it is still possible to pay the patent fee and obtain a patent annual fee receipt. Therefore, it is insufficient and sometimes even wrong to prove that the patent continues to be valid through patent annuity receipts. Since then, the aforementioned copy of the patent registration book has become extremely important. The author believes that the reason why patent annuity fee receipts are used to prove the continued validity of patents in practice may be influenced by Article 4 of the "Several Provisions of the Supreme People's Court on the Application of Legal Issues Regarding Cessation of Patent Rights Infringements Before Litigation". This article Regulations: The patentee shall submit documents proving the authenticity and validity of its patent rights, including patent certificates, claims, instructions, and receipts for payment of patent annual fees. The patent annual fee payment receipt here is one of the authentic and valid documents of the patent, but it does not mention a copy of the patent registration book, which cannot but be said to be a flaw. 6. Utility model patent search report, Article 8 of the "Several Provisions of the Supreme People's Court on Applicable Laws in the Trial of Patent Dispute Cases" stipulates that the plaintiff who files a lawsuit for infringement of utility model patent rights shall produce a certificate issued by the patent administration department of the State Council when filing a lawsuit. Search report. Therefore, after the promulgation of this judicial interpretation, many courts refused to accept the lawsuit if the plaintiff did not provide a utility model search report when filing a utility model patent infringement lawsuit. However, this approach is obviously inconsistent with the provisions of Article 108 of the Civil Procedure Law. Subsequently, the Supreme Court made it clear in its reply to the Beijing Higher People's Court's request that the issuance of a utility model search report is not a condition for filing a utility model patent infringement lawsuit. However, if the search report is not provided and the defendant files a request for patent invalidation, the People's Court shall suspend the litigation unless there are other circumstances that warrant not terminating the litigation. Therefore, it is best for the plaintiff to provide the search report of the utility model patent when suing to avoid the suspension of the case. 2. Evidence of infringement 1. Documentary evidence, usually a notarial certificate. After the patentee discovers the infringement through market research, he usually applies to the notary office to notarize or notarize the process of purchasing the infringing products and the purchased infringing products. Conduct an investigation and notarization of the infringement site (such as a promise to sell) or the installation site of the infringing product, and obtain a notarial certificate to prove the defendant's infringement. During the process of notarization and evidence collection, it is best for the patentee to take the initiative to ask the seller for the product brochure, the business card of the person selling the infringing product, the purchase invoice or receipt, to further clarify who the manufacturer and seller of the product are, and who has the patent right. A person may request the notary office to explain the source and authenticity of the aforementioned information and record it in the notarial certificate.

In addition, by the way, when choosing a notary office, you should also consider it. For example, in a provincial capital city, you can choose a provincial notary office instead of a district notary office. On the one hand, the district notary office may lack experience, and on the other hand, the district notary office may lack experience. They use various excuses for local protection or fear of retaliation. In addition, when choosing a notary office, you should also pay attention to the provisions of Article 14 of the "Rules of Notarization Procedure": Notarization matters shall be accepted by the notary institution at the domicile, habitual residence, place of conduct or the place where the facts occurred. Notarization matters involving real estate shall be handled by the notary office where the real estate is located. The notarization practice area refers to the notarization areas delineated by the judicial administrative agencies of provinces, autonomous regions, and municipalities directly under the Central Government in accordance with Article 25 of the "Notarization Law" and Article 10 of the "Measures for the Management of Practice of Notary Institutions" and the establishment plan of local notary institutions. The geographical scope within which the institution accepts notarization business. Therefore, when choosing a notary office, you should pay attention to the dual limitations of its jurisdiction and practice area to avoid the application being rejected or incorrect acceptance leading to procedural flaws in the notarial certificate. 2. Physical evidence: infringing products purchased by the patentee from the market. Purchased infringing products should be sealed by a notary and photographed. Before submitting it to the court, the plaintiff should ensure that the seal is intact, otherwise the defendant may raise objections during cross-examination and deny recognition of the infringing product. As mentioned above, the process of obtaining physical evidence is notarized. The patentee or his agent, together with the notary, goes to the infringer as an ordinary consumer to purchase the infringing product and then seals it. This process will be explained in the notarial certificate. However, many notarial certificates do not provide detailed descriptions of sealed products. Let me give you a case where I handled a trademark infringement case. As the agent of the defendant (seller), I found that the model and specification of the infringing product submitted by the plaintiff in court and sealed by the notary office were not mentioned in the notarization. Although the sealed bag is sealed and intact, there is no number on it to indicate its consistency with the notarial certificate. Since the plaintiff conducted notarization, evidence collection and litigation against a large number of sellers, it cannot absolutely rule out the possibility that the sealed physical evidence was not sold by the defendant in this case. After cross-examination and debate in court, the judge also agreed with this opinion. 3. Evidence of loss 1. Patent licensing contract. In current judicial practice, few plaintiffs provide evidence of direct or indirect losses. The main reason is that it is difficult to prove such evidence and the cost of proof is high. Currently, a large number of patent holders sign patent licensing contracts with others and use the agreed royalties as the basis for requesting compensation. However, although some patent companies will sign nominal patent licensing contracts with their business units and handle corresponding filing procedures and payment and tax receipts for patent licensing fees, the licensees do not actually produce patented products. In this case, strictly speaking, the license fee agreed in the contract should not be used as a reference for compensation. Although the defendant can raise a defense in this regard, given that the patent license contract has strong probative power and the law has clear provisions on this, the judge will generally accept it. 2. Financial audit report. According to the relevant provisions of the Patent Law, the amount of infringement compensation is determined with reference to the aforementioned patent license fees, as well as the losses suffered by the right holder due to the infringement or the benefits gained by the infringer due to the infringement and statutory compensation. When the plaintiff claims to use the losses he has suffered as the basis for the amount of compensation, he should provide a financial audit report on the profitability of his unit products, as well as the total reduction in sales volume caused by the defendant's infringement or the number of infringing products manufactured by the defendant. The product of the two is the basis for the plaintiff's loss amount; when the plaintiff claims that the defendant's profits are the basis for compensation, the plaintiff usually has to apply to the court to preserve the defendant's financial accounting books, and after auditing them by an independent third party, the plaintiff The conclusion determines the defendant’s profit from the infringement, thereby clarifying the basis for the defendant’s compensation. Finally, in statutory compensation, the plaintiff can provide some auxiliary evidence to prove the defendant's infringement and the market value of the patented product, which will be used as a reference factor for the court to determine the specific amount of compensation, such as the relevant contracts signed by the defendant and a third party, the defendant's website, etc. Prices of infringing products on promotional materials, etc. Defendant’s Cross-Examination and Evidence After receiving the notice of response to the patent infringement lawsuit, the defendant should not blindly negotiate a settlement with the plaintiff. Instead, it should comprehensively analyze the evidence provided by the plaintiff and collect evidence that is favorable to the organization based on the defense claims. In practice, the defendant has a variety of defense claims. In response to the plaintiff's claims above, the defendant has the following different defense claims.

1. Deficiency of rights defense When the defendant raises a defense of rights, it usually defends the plaintiff’s subject qualifications, ownership of the patent right, validity of the patent right, etc. Patent infringement lawsuits are usually initiated by the patentee himself, but in some cases where the patent is licensed, the licensee initiates the lawsuit. In this case, the defendant should first examine the licensing method. According to the provisions of judicial interpretations, only the licensee with an exclusive license can file a lawsuit as a plaintiff, while the licensees with general licenses and exclusive licenses have not obtained permission from the patentee. Under such circumstances, you cannot file a lawsuit as a plaintiff, which involves the issue of whether the plaintiff has the qualifications to be the subject of the lawsuit. Some original patentees still file infringement lawsuits in the name of the patentee after the patent rights have been transferred to others, which is obviously not in compliance with the law. In this regard, the defendant can provide a copy of the patent registration book to prove that the patent rights have been transferred and the plaintiff does not have the qualifications to be the subject of the lawsuit, thereby requesting the court to dismiss its claim. Another situation is that the patent rights may have been terminated, but the plaintiff filed an infringement lawsuit against the defendant out of competitive strategy considerations. In this case, it is also necessary for the defendant to provide a copy of the patent registration book. According to the provisions of the Implementing Rules of the Patent Law, anyone can apply to the State Intellectual Property Office for a copy of the registration book of an authorized patent. Therefore, there is no legal or practical obstacle for the defendant to provide a copy of the patent register, as long as the necessary fee is paid. A more special situation is when the patentee files a lawsuit against the manufacturer or seller who manufactured and sold the same product between the patent application and the patent announcement date. According to the law, manufacturing or sales during this period do not constitute patent infringement, so the defendant as a seller or manufacturer can also raise a defense here. 2. Non-infringement defense The basic principle of infringement determination is the principle of comprehensive coverage. If the defendant defends non-infringement, it should prove that the infringing product lacks the necessary technical features in the claims, or the technical features of the infringing product are consistent with the necessary technical features of the patent claims. Substantial differences do not constitute equivalents. In this regard, the defendant only needs to compare the patent claims provided by the plaintiff with the infringing products to draw a conclusion. If necessary, it can also apply for identification. However, if the defendant’s reason for claiming non-infringement is that the product was produced by someone else counterfeiting the defendant, in this case, how should the court allocate the burden of proof? Is it up to the plaintiff to prove that the product was indeed produced by the defendant, or is it up to the defendant to prove that the product was not produced by itself? The author believes that the burden of proof should be borne by the plaintiff. First of all, proving that the defendant committed an infringement is the core element of the plaintiff's lawsuit. In addition, in terms of the principle of proof, it is easier to prove an act than an omission. The third situation is when the defendant claims non-infringement based on the principle of estoppel. In order to prove that the plaintiff repented, the defendant should provide evidence that during the patent application or invalidation process, the plaintiff made certain changes to its patent claims or description in the statement of opinions made to the National Intellectual Property Rights or Patent Reexamination Board or other patent-related documents. a restrictive explanation. However, in the patent infringement lawsuit, the plaintiff claimed that the principle of equivalents should be applied to determine the defendant’s infringement, in an attempt to expand the scope of patent protection. This is not good for the defendant and the public, and is inconsistent with the principle of good faith. Therefore, it is not allowed by the patent judicial system. To this end, the defendant should have a detailed understanding of all patent documents. Just like the copy of the patent registration book mentioned above, anyone can apply to the State Intellectual Property Office to request the copying of patent documents. Therefore, after receiving the defendant's complaint, the first thing the patent defendant needs to do is to apply to the State Intellectual Property Office for copying the patent documents involved in the case. 3. Publicly known technology (design) defense The so-called well-known technology (design) refers to an invention, utility model or design patent that was publicly published in domestic and foreign publications, publicly used domestically, or otherwise known to the public before the date of application for a patent. Technology (Design). To this end, the defendant should provide publications that are the same as or equivalent to the technical solutions used in the infringing products that record well-known technologies, or physical products with exact sources, sales or usage times, and relevant auxiliary documents, such as product manuals, product brochures, and sales invoices. and witness statements, etc. After some defendants learn that a patent infringement lawsuit has been filed, the first thing they do is to look for the above-mentioned evidence to prove that the plaintiff's patent rights are not novel and declare the patent rights invalid. This is mainly used in design patent infringement litigation, because it is relatively easy to apply for a design patent, and the patent office does not conduct a substantive examination after accepting it, which puts the "valid" patent at risk of being "invalid".

4. Defense of the right of prior use Although the right of prior use will not invalidate the plaintiff’s patent rights, it is a clear legal defense that does not constitute infringement. In practice, many defendants choose to use the right of prior use as a defense, but few succeed, mainly because of insufficient evidence. Under normal circumstances, the defendant should provide the following evidence: 1. Design drawings and process documents before the plaintiff’s patent application date; 2. Information on the quantity and production capacity of equipment purchased before the plaintiff’s patent application date. 5. Contract Defense There is a case where the patentee signed an exclusive license contract with others. However, shortly after the contract was signed, the patentee signed another license implementation contract with another person. The exclusive licensee who was kept in the dark later discovered that the general licensee's products had entered the market, and filed an infringement lawsuit against the general licensee. At this time, the general licensee took out the general licensee and Defending the contract, the plaintiff had no choice but to withdraw the lawsuit and file a breach of contract lawsuit against the patentee. This case is a typical example of successful contract defense. Another situation is when the defendant implements a technical solution that is the same or equivalent to the plaintiff’s patent and obtains a license from others. In this case, the defendant should provide the court with a license contract. Although this evidence cannot exempt the defendant from liability for infringement, the defendant can apply to add the transferor as a defendant to jointly bear liability for compensation and avoid directly bearing all liability for infringement. This is also a litigation technique. When it is unavoidable to bear responsibility, bear as little as possible, that is, partial exemption. 6. The defense that the profit from infringement is less than the amount of compensation requested by the plaintiff When filing an infringement lawsuit, the plaintiff usually relies on the patent license fee as the basis for the amount of infringement compensation or the upper limit of statutory compensation of 500,000 yuan as the basis for compensation. As for the latter, due to legal provisions, many plaintiffs simply file lawsuits directly based on the upper limit of 500,000 yuan. If the defendant's infringement is established, but the profit is significantly lower than the plaintiff's claim, the defendant can use the amount of its own infringement profit to defend against the excessive amount of compensation proposed by the plaintiff. To this end, the defendant should provide a credible financial audit report to prove his profit status. At the same time, you can also provide other auxiliary evidence, such as the company's business license and other evidence to prove that the time between the establishment date and the occurrence of the infringement is short, so as to further reduce your liability for compensation. 7. Lawful source defense According to the provisions of Article 63, Paragraph 2 of the Patent Law, for the purpose of production and operation, the use or sale of patented products that are not known to be manufactured and sold without the permission of the patentee or products directly obtained according to patented methods is prohibited. , if the product can be proven to be of legal origin, it will not be liable for compensation. Therefore, this article provides the defendant with a better statutory defense basis, and the defendant should make full use of it. To this end, the defendant should provide evidence from legal sources, such as sales contracts, lease contracts, invoices, shipping documents, and all other evidence to prove the legal establishment of the transaction. At the same time, the defendant can provide other relevant evidence, such as sealed samples, pictures of products, etc. , lest the defendant raise objections to the relevance of the aforementioned evidence. Of course, this is for the more formal defendant companies. In practice, some self-employed individuals are often unable to provide the above-mentioned detailed evidence due to management problems, and then face the adverse consequences of being liable for compensation due to the inability to provide legal sources.