Intellectual property insiders know that in patent infringement cases, as the accused infringing party's defenses include the following: First, the defense of non-infringement, that is, the accused infringing product did not fall into the scope of protection of the patent; Second, the defense of free and public knowledge of the technology, the accused infringing product uses the technology before the date of filing the patent application; Third, the defense of invalidity of the patent right, by invalidating the other party's The third is the defense of patent invalidity, which achieves non-infringement by invalidating the other party's patent; the fourth is the defense of prior use, which asserts that the product has been used before the date of patent application; the fifth is the defense of lawful source, which applies only to the seller; and the sixth is the defense of statutory non-infringement. But each defense has its own characteristics and skills, this paper notes that according to some cases dealt with to describe. The author in 2003 has represented three design patent infringement litigation cases accused of infringing the party, the three cases for the same patentee the same defendant, the products are similar products, the three cases by the shenzhen intermediate court of intellectual property rights court known as the serial cases, at the same time the trial. In fact, there is no necessary connection between the cases, in order to save the program to be heard together. The design patents of the three cases were: (1) "Multi-function Electronic Clock (C63)" Application No. 01314763.3; (2) "Multi-function Electronic Clock (C60)" Patent No. 01314874.5; (3) (3) "Multi-functional Electronic Clock" Patent No. 01313977.0. According to the will of the client and the evidence provided, four defenses of non-infringement, invalidity of patent, prior use and free and public knowledge were raised in the three cases, which led to three different results because of the different circumstances of the cases. Case (1) of the accused infringing products in the appearance of the electronic clock clock face and patent design product clock face is basically the same, the difference is that the accused infringing products due to the addition of the oxygen bar function to increase the thickness of the product, it can be said to be the appearance of the difference, but for this kind of products, the main part of the clock face, and the oxygen bar combined with the electronic clock product and the product is similar to the design product, due to the addition of the oxygen bar function and did not change the clock face Since the addition of the oxygen bar function did not change the design of the clock face, the difference in thickness alone was not enough to attract consumers' attention, and thus the defense of non-infringement could not be established. The defendant claimed the right to use the evidence provided by the product mold development contract, the development contract before the patent application date, but the contract does not have the mold product model and specifications, there is no evidence to prove that the development contract and the product directly corresponds to, so the right to use the evidence was not supported by the court; the defendant claimed that the patent is invalid is the plaintiff authorized the production of the patented product in the exhibition and sale of products before the patent application date, the defendant claimed the patent is invalid. Patent application before the date of the exhibition will be advertisement color page, the publication has the organizer and issue time, will be published in the advertisement color page can clearly show the plaintiff's patented product three-dimensional photo, which in the front for the main part of the display, but with the allegedly infringing product is not the same, can be used as a public publication is proved that the patent right is invalid. The defendant claimed that the evidence of free public knowledge design is the same as the above patent invalid needle, but because the claimed infringing product and the above existing design is not identical, and at the same time with the patent product appearance is similar, the free public knowledge design of the court did not support the claim. In the defense period, the defendant to the state intellectual property office patent reexamination committee of the patent invalidation request, and request the court to suspend the trial of the case, the court did not suspend the trial, within six months to make a judgment, the judgment of infringement was established, compensation of RMB 50,000 yuan,. The defendant appealed, within the above period, the patent reexamination committee made a patent invalidation review decision, declared all the patent is invalid, and ultimately the high court based on the decision of the patent reexamination committee to revoke the judgment of the first instance, rejected all the plaintiff's litigation request. Therefore, the case ended in favor of the defendant. Case (2) of the allegedly infringing product and the appearance of the patented product is basically the same, non-infringement defense can not be established; the defendant claimed the right to use the evidence provided by the product mold development contract, the development contract in the patent application before the date of the contract, but the contract does not have the mold product model and specifications, no evidence to prove that the development contract can be directly correspond to the product in question, and therefore the claim of the right to use the product first. Not supported by the court; the defendant claimed that the patent is invalid evidence is the plaintiff authorized the production of patented products company's advertisement color page, the color page shows the picture with the patent appearance products, and the accused infringing products are basically the same, if the color page has a legal time of publication, as a public publication can be proved that the patent is invalid, but the color page does not have the date of issuance, and therefore can not prove that the product Appearance has been made public; the evidence of the defendant's claim of free public knowledge design is the same as that of the above patent invalidation of the needle tool. During the defense period, the defendant filed a request for declaration of invalidity of the patent right with the Patent Reexamination Committee of the State Intellectual Property Office, and requested the court to suspend the trial of the case, the court did not suspend the trial, and made a judgment within six months, judging that the infringement was established, and compensating RMB 50,000 yuan,. The defendant appealed against the decision, and within the said period, the Patent Reexamination Committee made a decision on the review of patent invalidity and maintained the validity of the patent right, and finally the High Court upheld the judgment of the case. Therefore, the case ended with the defendant losing. The situation in case (3) was different from the above two cases in that the whole of the electronic clock in the appearance of the allegedly infringing product was basically the same as the patented design product, and thus the defense of non-infringement could not be established. The defendant claimed the right to use the evidence provided by the product mold development contract, the development contract before the patent application date, but the contract does not have the mold product model and specifications, there is no evidence to prove that the development contract can be directly corresponding to the product in question, so the claim of the right to use the court; the defendant claimed that the patent is invalid is the plaintiff's authorization of the production of the patented products in the company's exhibition and sale before the patent application date. Patent application before the date of the exhibition will be advertisement color page, the publication has the organizer and issue time, will be published in the advertisement color page can clearly show the plaintiff's patent product three-dimensional photo, which in the front for the main part of the display, and is the same with the accused infringing products, can be used as a public publication is proved that the patent right is invalid. The defendant side claimed the evidence of free public knowledge design is the same as the above evidence of invalidity of the patent right. During the defense period, the defendant filed a request for declaration of invalidity of the patent right with the Patent Reexamination Committee of the State Intellectual Property Office and requested the court to suspend the trial of the case, which the court did not suspend the trial, and made a judgment within six months, ruling that the defendant's use of the appearance of a free and public design, and rejecting the plaintiff's litigation request. The plaintiff did not appeal. A few months later the Patent Reexamination Board issued a decision on patent invalidation review, declaring the patent right invalid in its entirety. From the above three design patent infringement case, in the defendant side claim defense when the patent infringement lawyer tips should pay attention to the following points: 1, patent invalidity defense patent invalidity defense is commonly used in patent infringement cases, for many cases, including invention patent infringement case, if the defendant side claim that the plaintiff side of the patent is invalid if the reason and evidence may be established, for the acceptance of the case of the The court, generally speaking, will terminate the trial, waiting for the results of the patent invalidation case. The most critical factor in the defense of patent invalidation is the evidence, need to prove that the patent technology program or appearance in the application before the date of public publication or public use, and generally should be based on the evidence of the public publication, the public publication can be a formal public publication, such as books, periodicals, newspapers, etc., can also be an informal public publication, such as technical manuals, data booklets, etc., but no matter what kind of publication are must have a clear time of publication, otherwise there is no proof of effectiveness. In the first case of this serial case, the color pages of the advertisements were actually printed and put out by the plaintiff before the patent application date, but they could not be identified due to the lack of time of printing and distribution. Has been disclosed technical content, regardless of whether legal, generally can destroy the novelty and creativity of the patent, illegal disclosure of technical secrets in the patent law also belongs to the public technology. 2, the claim of non-infringement defense do not waste valuable court time, there is a reason can be claimed, there is no reason not to emphasize their own claims, for the trial of patent infringement case judge is generally also an expert in the field, there is no need to emphasize repeatedly, the judge is also an expert in the field, there is no need to emphasize repeatedly. No need to repeatedly emphasize, repeatedly emphasize not only cause the case of the judge's disgust, but also waste their valuable time, especially in the appearance of the patent case, whether the same and similar, everyone is a look. Therefore, in this reason is difficult to establish should focus on their own advantage in other use. 3, on the free public knowledge technology defense free public knowledge technology defense based on two reasons, one is free, that is, there is no one's right to the technology, and the second is the technology has been disclosed. From the meaning of patent law, there is no other person's patent rights of the public technology that can be considered free public knowledge technology. Therefore, the evidence of free and public technology can be the patent documents which have been invalidated, the foreign patent documents which have no patent right in China, the academic papers which have been published in books and magazines, and so on. It can also be the technical content that can be obtained directly from the products that have been sold publicly. However, the defense of free and public knowledge technology should not use the valid patent documents of others. The claim of free public knowledge technology must be identical with the allegedly infringing products, as to whether the same with the patented technology is not considered, while the claim of free public knowledge technology defense must only use a technical program, the combination of the formation of the technical program can not be recognized as a free public knowledge of the basis of the technology. 4, on the right to use the defense in fact, for the defense of the right to use the right to use the right to use the defense of the right to use the right to use the right to use the right to use the right to use the right to use the right to use the right to use the right to use the right to use the first to require The defendant to prove that they have made the necessary preparations for the production and sale of patented products, this preparation is generally the defendant's unilateral preparatory behavior, it is difficult to have a high degree of credibility. In the above chain of cases, the court to mold development contract without product models and specifications for the reason of not recognizing the right of first use, in fact, is the model and specifications, due to the parties to the contract and the defendant has a strong relationship, in the absence of third-party proof of the situation, the authenticity of the contract is also difficult to determine. Therefore, it is recommended that enterprises in preparation for the production of a certain product needs to be the structure of the product, appearance and other technical data in a certain way to publicize or take notarization measures, in order to retain their own party has begun to prepare for the production of evidence of sales. Of course, the best way is to apply for a patent.
Legal objective:The Chinese People's **** and the State Patent Law, Article 69 of the following circumstances, is not regarded as an infringement of the patent: (a) the patented product or in accordance with the patented method of direct access to the product, by the patent owner or its licensee, units, individuals sold, the use, promise to sell, sales, imports of the product; (b) in the patent application date has been (b) the same product has been manufactured or the same method has been used or the necessary preparations have been made for its manufacture or use before the date of filing the patent application, and continues to manufacture or use it only within the original scope; (c) a foreign means of transportation that passes through China's territorial land, water and airspace temporarily uses the relevant patent in the devices and equipment of the means of transportation in accordance with the agreement signed between the country of which the means of transportation belongs and China or an international treaty to which the country is a party, or in accordance with the principle of reciprocity, for the purposes of the means of transportation's own needs The relevant patent; (d) the use of the patent exclusively for scientific research and experimentation; (e) for the purpose of providing the information required for administrative approval, the manufacture, use, import of patented drugs or patented medical devices, as well as specifically for the manufacture and import of patented drugs or patented medical devices.