How to fight patent lawsuit

Should have jurisdiction to the intermediate people's court for prosecution

The place of the tort or the people's court where the defendant has his domicile shall have jurisdiction

The amount of compensation shall be determined according to the losses suffered by the obligee or the interests gained by the infringer

The detailed rules for the implementation of the patent law of the People's Republic of China promulgated by the state council will come into force on July 1. In order to enable people's courts at all levels to correctly hear patent dispute cases, on June 27, the supreme people's court promulgated to the public several provisions on the application of law in hearing patent dispute cases, which took effect on July 1.

Which patent disputes can be sued

According to the Supreme Court, there are two types of patent dispute cases that can be sued to the people's court, one is patent civil dispute case, the other is patent administrative case. Specifically, it includes 16 types:

1. Patent application right dispute cases; 2. Patent ownership dispute cases; 3. Disputes over contract transfer of patent right and patent application right; 4. Patent infringement dispute cases; 5. Patent dispute cases of counterfeiting others; 6. Disputes over royalties after the publication of the application for a patent for invention and before the grant of the patent right; 7. Disputes over awards and remuneration to inventors and designers for service invention-creation; 8. Application for stopping infringement and property preservation before litigation; 9. Disputes over the qualification of inventors and designers; 10. Cases where the patent reexamination board refuses to accept the decision of rejecting the application for reexamination; 11. Deciding a case against the request for invalidation of the patent right made by the patent re-examination board; 12. Cases where the administrative department for patent under the state council refuses to accept the decision of compulsory licensing; 13. Cases where the administrative department for patent under the state council refuses to accept the ruling on the exploitation fee of compulsory license; 14. A case against the administrative review decision of the patent administration department under the state council; 15. Cases of refusal to accept administrative decisions made by departments in charge of patent work; 16. Other patent disputes.

Where should I go to court

The Supreme Court explained that the territorial jurisdiction of patent infringement cases shall be governed by the general provisions of the civil procedure law, that is, the jurisdiction of the people's court in the place where the infringement occurs or where the defendant has his domicile. That is to say, a party to a patent dispute case should bring a lawsuit to the intermediate people's court that has jurisdiction over the patent dispute case in the place where the infringement occurred or where the defendant is domiciled.

In order to facilitate the parties to grasp the provisions of the applicable jurisdiction of the people's court, the judicial interpretation explains the place of infringement of various types of patent infringement. Article 5 stipulates: "the place of infringement includes: the place where the manufacture, use, promise sale, sale, import and other ACTS of the product accused of infringing the patent right of invention and utility model are carried out; Where the act of using the patented method is carried out; The place where the use, promise sale, sale, import and other ACTS of the product obtained directly according to the patented method are carried out; The place where the manufacture, sale, import and other ACTS of the patented design products are carried out; Where the act of counterfeiting another person's patent is carried out. The place where the above infringement occurs.

How is the compensation calculated

According to the Supreme Court's interpretation, the amount of compensation can be calculated as follows.

First, by the obligee due to the infringement of the loss by the calculation. The losses suffered by the right holder as a result of the infringement may be calculated on the basis of the total amount of sales of the patented product reduced by the infringement multiplied by the reasonable profit of each patented product. Where it is difficult to determine the total amount of the obligee's sales reduction, the sum of the total amount of the infringing product sold on the market multiplied by the reasonable profit of each patented product may be regarded as the loss suffered by the obligee as a result of the infringement.

Second, the amount of compensation shall be determined according to the interests obtained by the infringer due to the infringement. The profit obtained by the infringer as a result of the infringement may be calculated on the basis of the total amount of the infringing product sold in the market multiplied by the reasonable profit of each infringing product. The profits obtained by the tortfeasor due to infringement are generally calculated on the basis of the operating profit of the tortfeasor.

Third, the losses which the patentee or the benefits is difficult to determine, a patent license fee can consult, the people's court may, according to the category of the patent right, the nature of the infringement of the infringer and the plot, the amount of patent licensing fees, such as the nature of the patent license, scope, time factor, refer to the patent license fee of 1 to 3 times more reasonable compensation; In the absence of any reference to the patent licensing fee or where the patent licensing fee is obviously unreasonable, the people's court may, in accordance with the type of patent right, the nature and circumstances of the infringement by the infringer and other factors, generally determine the amount of compensation between RMB 5,000 yuan and RMB 300,000 yuan, and the maximum amount shall not exceed RMB 500,000 yuan.

In addition, the right holder can also be due to the investigation, to stop the infringement of the reasonable costs paid by the calculation in the amount of compensation.

Other issues that should be noted

First, where the administrative authority for patent affairs has determined the infringement or non-infringement, the party concerned may still bring a lawsuit to the court.

Second, when a party brings a lawsuit for infringement of the patent right for utility model, it shall, at the time of filing the suit, issue a search report made by the patent administration department under the state council.

Third, the defendant in a case concerning a dispute over a patent right for utility model or design has the right to request suspension of the lawsuit, but he shall, within the period of defense, request that the patent right of the plaintiff be declared invalid.

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