Are you ready for the full patent annual goods (2)

VI. The principle of patent infringement judgment-the principle of full coverage.

The legal protection function after patent authorization is mainly reflected in infringement litigation, that is to say, through litigation, competitors stop production and lose money.

How do you judge whether it is infringement? Simply put, it is the so-called "full coverage principle". One side is the claim of the authorized patent, and the other side is the product being analyzed. If all the technical features in the claim are fully reproduced in the product, it constitutes infringement. Pay attention to the logical relationship here and don't reverse it. To apply the concept in middle school mathematics, it can be simply understood that "product ≥ claim" constitutes infringement.

Some people say that my product does contain all the technical features in the claims, but there are other features. I have new improvements, but I am sorry, according to the principle of full coverage, it still constitutes infringement. However, if the product lacks any of the technical features in the claims, it will not constitute infringement.

Let's look at a simple living example. Suppose the claim is: "Apple salad, containing apples and salad dressing". If the product is an apple salad, it clearly constitutes infringement. But if the product is a mixed salad containing apples, bananas and peaches, do you think it is also infringing? Some people hesitate, intuitively, the two seem to be quite different. However, according to the principle of full coverage, the mixed salad does reproduce all the technical features in the claims. Aren't "apples" and "salad dressing" both present? Although there are still bananas and peaches, they are useless and still infringe.

VII. Circumvention of design may lead to new patents

In the example just now, someone suggested replacing the salad dressing with yogurt. This is indeed a good idea. In this way, there will be no infringement at all. This is called circumvention design, successfully bypassing the scope of patent protection. Moreover, it is possible to form new patents in the design process, such as yogurt salad. If the effect is better, it is entirely possible to obtain new patents.

What is the average amount of compensation in patent infringement litigation? -170000 yuan

Many have accused the Chinese courts of failing to defend their patents and of paying too little. But I personally don't think so.

Tort litigation has two purposes: injunction and compensation. Is the amount of compensation in China's patent infringement litigation low? It is indeed low. The historical average of the past 30 years is only 80000 yuan, and the average of the last 10 years has increased a little, only 170000 yuan. The amount is indeed not high, and it cannot be compared with the United States, but under the civil compensation principle of the civil law system, it is difficult to go anywhere. Even if we play hard to increase, for example, 100 times to 17 million yuan, what can we do? It's only $2.5 million, which may not even be enough for legal fees in the United States. Especially for pharmaceutical companies, tens of millions of yuan in compensation is nothing at all. It may only account for a few percentage points of drug sales, but the ban is much more terrifying. Once the suspension of production is over, the company may go bankrupt. Therefore, for pharmaceutical enterprises, the ban is more important than compensation, and the low amount of compensation is not a thing at all.

9. What is the success rate of patent infringement litigation-an average of 72%

What is the probability of winning a patent infringement lawsuit in China to get an injunction? The historical average success rate of right holders over the past 30 years is as high as 72%. Looking at the world, it is almost the highest among the major countries. Even the Eastern District Court of Texas, which is generally recognized as being particularly friendly to rights holders, has not such a high winning rate. In other words, once you become a defendant in China, you have a 70% chance of losing, so getting into a patent lawsuit is not fun. From this perspective, China may be the most friendly country to patentees. Of course, the success rate of patent infringement lawsuits in the pharmaceutical field is lower than the overall average, only about 40%, but from a global perspective, it is not low.

X. Invalidation of having no choice but to make wedding clothes for others

If you become a defendant in an infringement lawsuit, a common coping strategy is to invalidate the other party's patent. However, as mentioned earlier, some patents are very solid and difficult to be invalidated. On the other hand, if you are lucky, the patent will be invalidated successfully, but other competitors who want to imitate will follow suit and reap the benefits of fishing. You worked so hard to knock out the patent with your money and effort, but you took advantage of your competitors for nothing. Mantis catches cicadas and yellowbird behind. This is a pain point in the current pharmaceutical patent field, and there is no good solution at present.

11. "Spend money to buy peace" patent license.

If the patent infringement lawsuit is not won, then the next will immediately face the critical situation of stopping production. If you don't want to stop production, you can take the initiative to settle with the right holder and pay patent royalties, so that people will no longer pursue. This is a patent license, which can be simply understood as spending money to buy peace.

Sometimes, there may not be actual litigation, but we actively discover the relevant patents of competitors through patent warning. In order to avoid future disputes, we can actively contact the other party to seek permission. This is beneficial, because at this time the product development may still be in the early stage, and the product has not yet been listed, which is conducive to obtaining a more favorable license fee; if you wait until the drug approval documents are obtained, or even the drugs are on the market, at this time Suddenly being sued by the patentee, you will face the situation of riding a tiger. At this time, you can only be the alliance under the city and be slaughtered.

News source:https://news.yaozh.com/archive/21806.html

This news was re-edited and reorganized by the Huaxun team and added analytical comments.