How to collect evidence in design patent infringement dispute cases
1. Collection of subject qualification evidence
Evidence regarding the plaintiff’s subject qualifications (i.e. the patentee), this comparison It’s simple. Generally, all you need is a patent certificate, patent registration copy, patent annual fee payment receipt, etc.
As for the determination of the defendant, this issue is relatively complicated. The ultimate goal of most plaintiffs in filing this lawsuit is to demand an end to infringement. To truly achieve this goal, the production and manufacturing of infringing products must be stopped, so producers and manufacturers have become the first defendants preferred by rights holders. If the infringement information is learned through the manufacturer's exhibition and sales, then the defendant's identity can be confirmed by determining the name of the manufacturer and other information, and through the industrial and commercial credit network or actual industrial and commercial inquiries. If you know it through the seller, you should pay attention to inquire about the manufacturer or ask for the manufacturer's product warranty certificate through notarized purchase to obtain the manufacturer information.
The seller of the product can be identified by its name Industry and commerce inquiries revealed. However, in practice, there is a situation where the seller itself has not completed any industrial and commercial registration, but only rents a storefront for business. In this case, the rights holder should pay attention to collecting the identity information of the store owner (personal). When necessary, if the seller rentsIt is a large market (such as Xiushui Street in Beijing, etc.). At this time, the tenant can also be listed as a defendant, but its liability is generally conditional on providing convenience for infringement. Therefore, when suing the tenant, you should pay attention to the tenant. Take certain measures, such as issuing a lawyer's letter, to obtain evidence that they provide convenient conditions for infringement.
2. Collection of factual evidence of infringement
According to relevant provisions of the Patent Law, design patent infringement must meet certain requirements, generally including: without the right holder's permission; implementing the patent; manufacturing, selling, and importing design patented products.
The author here reminds you that you must pay attention to the appearance Promise to sell (such as product display) is not included in the requirements for design patent infringement. Therefore, it is inappropriate for the rights holder to see a merchant displaying and selling infringing products and then assume the infringement and rush to sue.
A more common approach is to conduct unannounced notarization of purchases , to obtain evidence of infringement. Since this evidence is crucial, it is recommended that the parties concerned find a lawyer to obtain evidence.
3. Collection of evidence for loss compensation
As for loss compensation, although the Supreme Court has a clear judicial interpretation , but this is still a headache in practical operation. In practice, it is difficult to obtain evidence of the sales volume of infringing products, so it is difficult to accurately calculate specific compensation.amount. The author has some experiences to share with you: First, for the plaintiff, if the design product itself has been used for production and sales, it can be analyzed by comparing the sales before the infringement and the sales after the infringement. If If the sales volume after infringement is significantly reduced, evidence of reduced profits can be obtained through audit appraisal by an accounting firm. However, there are also other factors that contribute to the reduction in sales, so the amount of the claim can be appropriately reduced during prosecution. Secondly, out of consideration for the ultimate purpose of the rights holder, if it is indeed difficult to calculate the amount of compensation for infringement, it is recommended to use statutory compensation based on the infringing product, time of infringement, etc., which can save litigation time.
If there are problems that need to be communicated and resolved, if the content is If you are not sure and want to know more, it is recommended that you seek help from an online lawyer on the Legal Savior Network in a timely manner.
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