What is patent litigation? What is the process of patent litigation?

What is patent litigation? What are the classifications of patent litigation? What are the basic techniques for patent litigation? The following article explains these issues for you.

1. Basic overview of patent litigation

Patent litigation refers to the general term for various lawsuits involving various litigation related to patent rights and related rights and interests conducted in court by parties and other litigation participants.

Patent litigation in a narrow sense refers to litigation activities involving patent rights as the subject matter after the patent right is granted. Patent litigation in a broad sense can also include litigation involving the ownership of the application rights during the patent application stage, litigation arising from the licensed implementation of the patented technology, litigation to determine the identity of the inventor, and whether the patent application can be granted during the review stage. Litigation involving patent rights and litigation involving the rights and interests of patent applicants and related rights holders that occurred before the patent right was granted.

2. Classification of patent litigation

(1) Patent ownership litigation

Patent right ownership litigation refers to litigation involving a patent application right or the entity to which the patent right ultimately belongs. It mainly refers to patent application right ownership litigation and patent right ownership litigation. Patent application right ownership litigation occurs during the patent application stage, and patent right ownership litigation occurs after the patent right is granted.

(2) Patent infringement litigation

Patent infringement litigation refers to litigation initiated by the patentee due to illegal infringement of patent rights. They can be patent infringement lawsuits caused by a single patent infringement, or patent infringement lawsuits caused by other reasons, such as caused by patent implementation licensing and patent rights transfer, caused by counterfeit patents, caused by technology trade or caused by caused by parallel imports. But the most common ones are patent infringement lawsuits caused by infringement of a single patent.

(3) Patent contract litigation

Patent contract litigation refers to litigation arising from non-performance or partial performance of a patent implementation license contract or patent transfer contract. The matters involved in this type of litigation are rights and obligations stipulated in contracts or laws. In this type of litigation, the breach of contract by the parties to the contract is an important cause and subject of the litigation. The patent licensing contract or transfer contract is an important basis for judging and resolving such litigation. This type of litigation should usually involve a written license contract or a written transfer contract signed by both parties, but it also includes situations that constitute a de facto patent license or patent transfer without a written agreement.

(4) Patent administrative litigation

The strict meaning of patent administrative litigation is judicial review litigation cases of patent administrative actions, including: administrative litigation filed by parties who are dissatisfied with the review decision of the Patent Review Board to uphold the rejection of a patent application or review decision of request for invalidation; parties who are dissatisfied with national intellectual property rights Administrative litigation in which he is the defendant for specific administrative actions (including administrative review decisions) made by the bureau; filed by parties dissatisfied with the decision of the local intellectual property rights management department to stop infringement, or the penalty decision of counterfeiting someone else's patent or passing off a patent. administrative litigation.

(5) Other patent-related litigation

Other patent-related litigation includes litigation arising from the qualifications of the inventor or designer, litigation arising from the employer's failure to provide certain remuneration or incentives to the inventor or designer in accordance with legal provisions after the employment invention has been implemented and economic benefits have been achieved, etc.

3. Legal skills in patent litigation

(1) Thoroughly understand the patented technology

For highly technical patent litigation, it is very important to research, analyze and thoroughly understand patented technology and related technologies. Patent litigation requires lawyers to not only understand legal provisions and relevant regulations, but more importantly, lawyers must understand patent technology.

In patent litigation, in addition to relevant laws, understanding of patented technology is also a very important part. Legal provisions alone cannot solve the relevant issues in patent litigation, especially when determining whether a certain technology constitutes infringement or whether it constitutes infringement. Whether it is a technology that is well-known to the public, whether it is an obvious technology, etc., all require certain technical knowledge. It is difficult to be competent in patent litigation without delving into patented technology.

(2) Collect effective evidence

For the lawyer of the plaintiff's patentee, the most important thing is to collect evidence of infringement. It is important to purchase infringing products, but some infringing products themselves are counterfeit products of others, and the manufacturer mentioned above is not necessarily the real infringer. factory.

Therefore, it is best to go directly to the manufacturer to purchase products suspected of infringement. If necessary, you can obtain evidence through notarization, or obtain evidence of infringement through the industrial and commercial administration department or technical supervision department when performing other duties.

The most difficult thing for the plaintiff to obtain evidence is to obtain the amount of the other party’s production and sales. In this case, the plaintiff can request the court to take evidence preservation measures to obtain this evidence. Obtaining evidence of infringement and the amount of infringement is the key to the plaintiff's success.

For the defendant, the key is to collect all evidence that can invalidate the plaintiff's patent, including patent documents, sales invoices, product advertisements, public use certificates, etc. Although product invoices can be used as evidence to invalidate someone else's patent, sometimes the invoice is not enough because the invoice does not specifically describe the shape or technical characteristics of the product.

If the defendant finds evidence that is sufficient to pose a threat to the plaintiff's patent, which is one of the keys to victory, or if it finds effective evidence that proves its prior use or that it is using freely and publicly known technology, it may take the initiative in the lawsuit.

(3) Use relevant patent litigation strategies

For defendants, the most common method is to counterclaim that the other party’s patent is invalid, thereby buying time to seek other defense methods. For plaintiffs, before litigation, they can evaluate and re-examine their patents and obtain relevant evidence and identification or reports of patent validity to facilitate subsequent litigation.

Litigation related to patents will have different attack, defense and strategies depending on the parties to the litigation, the content of the patent, market share, patent pool, subsequent patent strategy, etc. Therefore, it is still recommended that lawyers who specialize in patent litigation and Engineers come to assist.

Further reading:What should I do if a trademark infringement occurs? Legal measures that can be taken.

Further reading:What are business secrets? Three major legal requirements for business secrets.

Further reading:What should I do if an employee takes away company confidential information? Relevant provisions of the Trade Secrets Act.

Fuda Law Firm, composed of a team of lawyers, patent attorneys and patent engineering teams who are dedicated to patent law and specialize in the field of intellectual property law. The team lawyer members all have rich practical experience and long-term experience in serving listed companies and small and medium-sized enterprises, and can provide assistance. If you have any needs, you can contact our firm at any time.

Fuda Law Firm
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