What is the evidence to be provided in a patent infringement lawsuit?

What is the evidence to be provided in a patent infringement lawsuit? In patent infringement litigation, the plaintiff should first collect and sort out evidence according to the four elements of infringement liability stipulated in China's civil tort laws and regulations, and at the same time, it should also combine the particularity of patent infringement and strive to form a complete chain of evidence submitted to the court, which is impeccable. As a plaintiff, the following evidence should be provided:

What is the evidence to be provided in a patent infringement lawsuit? (1) Evidence of rights 1Proof of the plaintiff's qualifications, ID card for natural persons, business license or registration certificate for enterprises and institutions; 2.

Patent certificate, which proves the ownership status of the patent at the time of grant; 3.A copy of the patent register; 4.Text of the patent grant announcement:

in the case of an invention or utility model, the claims, description, abstract and drawings of the abstract; The design is granted by public notice ** or ** and a brief description; 5.Receipt of patent annuity: proof of the continued validity of the patent; 6.

c) Evidence of loss 1Patent exploitation license contract; 2.Financial audit report.

What is the evidence to be provided in a patent infringement lawsuit? If you have more questions about patents, you can continue to pay attention to Bajie Intellectual Property, or contact us.

There are the following ways to preserve evidence of patent infringement: before filing a civil lawsuit with the people's court, apply for evidence preservation first. If the court requires the patentee to provide security, the patentee shall provide security, and if the patentee fails to provide it, the court will reject the patentee's application.

[Legal basis].

Article 67 of the Patent Law of the People's Republic of China provides that in order to stop the act of targeting patent infringement, the patentee or interested party may apply to the people's court for preservation of evidence before filing a lawsuit if the evidence may be destroyed or difficult to obtain in the future. The people's court may order the applicant to provide security when taking preservation measures; If the applicant does not provide a guarantee, the application shall be rejected. The people's court shall make a ruling within 48 hours of accepting the application; Where a ruling is made to employ preservation measures, it shall be immediately enforced.

Where the applicant does not initiate litigation within 15 days from the date on which the people's court takes the preservation measures, the people's courts shall lift the measures.

That is, the physical objects, product catalogs, sales invoices, purchase and sale contracts and other manuscript evidence of the infringing items are destroyed; 3. Evidence of loss. That is, the right holder's own proof of loss and other evidence.

[Legal basis].

Article 63 of the Civil Procedure Law of the People's Republic of China includes: (1) the statements of the parties; (2) documentary evidence; (3) Physical evidence; (4) audio-visual materials; (5) Electronic data; (6) Witness testimony; (7) Appraisal opinions; (8) Inquest records. Evidence must be verified to be true before it can be used as a basis for determining facts.

Article 64: Parties have the responsibility to provide evidence for their own claims. The people's court shall investigate and collect evidence that the parties and their litigants are unable to collect on their own for objective reasons, or evidence that the people's court finds necessary for the trial of the case. The people's courts shall follow legally-prescribed procedures to comprehensively and objectively review and verify evidence.

1. The alleged infringing products produced by the defendant; If the alleged infringing product cannot be obtained due to objective reasons, it may first provide indirect evidence such as the defendant's advertisement for the sale of its products in newspapers and periodicals, the sales contract signed with others, and then obtain direct evidence of infringement by other means;

2. Evidence of the infringer's situation.

As the saying goes, knowing oneself and knowing one's opponent will win all battles. Therefore, the exact name, address, nature of the enterprise, registered capital, number of personnel, business scope, etc., of the infringer should be known first. It is important to understand these situations in order for patent owners to adopt strategies to deal with patent infringement.

3. Evidence of the facts of infringement.

The prerequisite for patent infringement is that there must be an infringement. Therefore, evidence to prove that the infringer has indeed committed the act of patent infringement is crucial in dealing with infringement. The evidence in these aspects includes the physical objects of the infringing goods, product catalogs, sales invoices, purchase and sale contracts, etc.

4. Evidence of damages.

Evidence of patent infringement, evidence collection, evidence of infringement. The patentee may claim damages from the infringer. The amount of damages claimed may be the loss suffered by the patentee.

However, the patentee shall provide evidence to prove that due to the infringement of the other party, the sales volume of its patented products has decreased, or the sales have decreased, as well as other losses such as overpaid expenses or expenses with less income.

In practice, if your patent is infringed, you should know what ways you can protect your legitimate rights and interests, and at the same time pursue the legal responsibility of the infringer. As for patent infringement, mediation can be filed with the patent administration department, and of course, a lawsuit can also be filed directly with the court.

Article 54 of the Patent Law of the People's Republic of China stipulates that in accordance with Article 48(1) and Article 51 of this Law, an entity or individual applying for a compulsory license shall provide evidence to prove that it has requested the patentee to license it to exploit the patent on reasonable terms, but has failed to obtain the license within a reasonable time. Article 61: Where a patent infringement dispute involves an invention patent for a manufacturing method of a new product, the unit or individual that manufactures the same product shall provide proof that the manufacturing method of its product is different from the patented process. If a patent infringement dispute involves a utility model patent or a design patent, the people's court or the department in charge of patent affairs may require the patentee or interested party to issue a patent right evaluation report made by the patent administration department after searching, analyzing and evaluating the relevant utility model or design, as evidence for the trial and handling of the patent infringement dispute.

1. Evidence to prove one's qualifications as a plaintiff.

1. If the patentee files a lawsuit, it shall submit documents proving the authenticity and validity of its patent right, including the patent certificate, claims, description and the latest patent annuity payment certificate. The plaintiff who files a lawsuit for infringement of the patent right of utility model shall submit a search report issued by the patent administration department.

2. If the interested party files a lawsuit, it shall submit the supporting materials for the filing of the patent exploitation license contract with the patent administration department; If it has not been recorded, a certificate from the patentee or other evidence proving that it enjoys the right shall be submitted.

3. The licensee of the exclusive license contract may file a lawsuit with the people's court alone; The licensee of the exclusive exploitation license contract may file a lawsuit jointly with the patentee, or may file a lawsuit on its own if the patentee does not file a lawsuit, provided that the patentee has expressly waived or not sued because the patentee knows that the infringement has occurred.

4. If the heir of the patent property right files a lawsuit, he shall submit the evidence materials that have been inherited or are in the process of being inherited.

2. Evidence to prove that the defendant has committed infringement.

1. The alleged infringing product produced by the infringer, which is the most direct evidence;

2. If it is truly impossible to collect the alleged infringing products due to objective reasons, indirect evidence such as advertisements and leaflets published by the infringer in newspapers and periodicals for the sale of its products, sales contracts signed with others, etc., may be provided first;

3. The seller and user of the allegedly infringing product sells or uses the product knowing that the product is an infringing product;

3. Evidence for compensation.

The plaintiff shall submit evidence that can prove the amount of compensation it claims, such as evidence of the losses suffered by the right holder as a result of the infringement or evidence of the benefits obtained by the infringer as a result of the infringement; Where it is difficult to determine the losses suffered by the right holder as a result of the infringement or the benefits obtained by the infringer as a result of the infringement, the people's court may reasonably determine the amount of compensation with reference to 1 to 3 times the patent royalty; If there is no patent royalty to refer to or the patent royalty is obviously unreasonable, the people's court may, on the basis of factors such as the type of patent right, the nature and circumstances of the infringement, generally determine the amount of compensation between RMB 5,000 and RMB 300,000, and the maximum amount shall not exceed RMB 500,000. The amount of such compensation may include reasonable expenses incurred in investigating and stopping the infringement.

1) The patentee uses, offers to sell, or sells a patented product manufactured or imported with the permission of the patentee, or a product directly obtained in accordance with the patented process, after the product is sold;

2) The same product has been manufactured, the same method has been used, or the necessary preparations for manufacture or use have been made before the date of application for the patent, and the manufacture or use has been continued only within the original scope;

3) The use of the relevant patents in the devices and equipment of the means of transport for the purpose of the means of transport for their own needs in accordance with the agreement signed between the sending country and China or the international treaties to which they belong or in accordance with the principle of reciprocity;

4) The use of relevant patents for the purpose of scientific research and experiments.

In a patent infringement lawsuit, the court needs to ascertain whether the patent right exists, the subject of the patent right, whether the patent right is valid and the scope of patent protection

1.Patent certificate and patent certificate content: including the cover of the patent certificate and the patent content, the design also includes a brief description (the patent granted before October 1, 2009 only includes the cover of the patent certificate, does not include the patent content, and the patent content needs to be queried by the State Intellectual Property Office).

2.A copy of the patent register. A copy of the patent register is a proof of the immediate legal status of the patent.

When a patent is granted by the State Patent Office, the contents recorded in the patent register and the patent certificate are consistent and have the same effect in law; After the grant of the patent right, the change in the legal status of the patent is only recorded in the patent registration book, and if the content recorded in the patent register is inconsistent with the content recorded in the patent certificate, the legal status recorded in the patent register shall prevail. Since a copy of the patent register records the payment of patent annuities and a copy of the patent register is provided, it is not necessary to submit a receipt for the payment of patent fees.

To apply for a copy of the patent register, a request for a copy of the handling document signed and sealed by the requester shall be submitted and handled at the Lingxing and Provincial Agencies of the State Intellectual Property Office.

3.Receipts for fees charged by the Intellectual Property Office (annual fee category). After the patent is granted, the annual patent fee needs to be paid every year to maintain the validity of the patent right, the deadline for the payment of the annual fee is one month before the patent application date, and the annual fee for the next year is paid in advance.

The plaintiff was only required to provide a receipt for the last payment of the annual fee.

4.Patent evaluation report (search report). The patent evaluation report is a patent evaluation report issued by the State Intellectual Property Office according to the request of the patentee or interested party, after the utility model or design is granted a patent, and analyzes and evaluates whether the patent meets the authorization conditions stipulated in the Patent Law and its implementation rules, and makes a patent evaluation report, which is a relatively authoritative patent quality evaluation issued by the government.

5.Decision on the examination of the request for invalidation. According to the provisions of the Patent Law, if any entity or individual considers that the grant of the patent right does not comply with the relevant provisions of the Patent Law from the date of publication of the patent grant, it may request the Patent Reexamination Board to declare the patent right invalid, and the Patent Reexamination Board shall make a decision to maintain the validity of the patent right, partially validity, or declare the patent right invalid upon the request.

After the patent invalidation procedure, the scope of protection of the patent right is further clarified, so the scope of protection of the patent claimed by the plaintiff cannot exceed the scope of the valid part of the decision on the request for invalidation.

6.Effective judgment documents of the patent right confirmation procedure. If a party is dissatisfied with the invalidation review decision made by the Patent Reexamination Board, it may file a lawsuit with the Beijing Intellectual Property Court within three months from the date of receipt of the notice.

1. Documentary evidence: usually a notarial certificate, after the patentee discovers the infringement through market research, it usually applies to the notary public to notarize the process of purchasing the infringing product and the infringing product purchased, or investigates the infringement site (such as promising to sell) or the installation place of the infringing product, and obtains a notarial certificate, so as to prove that the defendant has infringement. In the process of notarization and evidence collection, it is best for the patentee to take the initiative to ask the seller for product brochures, business cards of the person selling the infringing products, purchase invoices or receipts, so as to further clarify the producer and seller of the product, and at the same time, the patentee may request the notary public to explain the authenticity and authenticity of the aforesaid materials, and record them in the notarization deed.

In addition, it is also mentioned that when choosing a notary office, there should also be considerations, such as in the provincial capital, you can choose the provincial notary office instead of the district notary office, one may be the district notary area is inexperienced, and the other is that the district notary office may shirk for various reasons out of local protection or fear of retaliation.

2. Physical evidence: the infringing product purchased by the patentee from the market. The purchased infringing products should be sealed by a notary public and photographed. Before submitting to the court, the plaintiff should ensure that the seal is intact, otherwise the defendant may raise objections during cross-examination and refuse to recognize the infringing product.

1. What are the types of patent infringement?

Because patents have high practical value, they are often infringed. Under normal circumstances, there are usually three types of patent infringement: production rights, business rights and indirect rights.

The right to produce includes two aspects, one is to produce and manufacture other people's patented products; The second is to use other people's patented technology to directly or indirectly produce and make profits, which is called the right to production. The use of the method, as long as it is used for production and operation, constitutes infringement, and the design and manufacture of a patented product of another person and then for its own use for the purpose of production and operation, this manufacturing and use behavior also constitutes the right of production. The design patent does not have the right to use, but only the right to produce the act of manufacturing.

The indirect right is premised on the establishment of direct infringement, and if the direct infringement is not established, the indirect right cannot exist. The establishment of indirect rights often has some degree of common intent or knowledge, and indirect rights usually have the following three manifestations.