Application of Attack Strategy in Patent Infringement Litigation

From the perspective of litigation cost, litigation time, litigation procedure, etc., patent infringement litigation is a relatively expensive legal game, and often faces fierce resistance from the defendant, such as filing a patent invalidation declaration against the disputed patent. After such an expensive and cumbersome legal process, many companies will feel considerable pressure. Therefore, before opening the Pandora's box of patent infringement litigation, they must make careful decisions and fully prepare.

Since patent infringement litigation is a relatively complex professional matter, whether it is the fight against patent infringement or the response to patent infringement allegations, it is full of a lot of skills, strategies, and changes. Nanjing Huaxun this article does not seek its whole, but seeks its essence, from the main link and core content of patent infringement litigation, to explain some of the topics.

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01, identification of infringement

Before carrying out patent infringement litigation, we should first monitor and collect infringement clues through various channels, such as exhibitions, product advertisements, customer investigations, consumer complaints, patent citation analysis, patent authorization announcement monitoring, competitor monitoring, infringement reporting rewards, etc. In most cases, the business is mainly through their own marketing. network to discover and identify patent infringement. Understanding the composition of patent infringement and its manifestations is the basis for discovering and identifying patent infringement.

(1) What constitutes a patent infringement

Patent infringement refers to the behavior that the actor implements his patent for profit without the permission of the patentee and violates the provisions of the patent law during the patent protection period or validity period. The elements that constitute patent infringement include two aspects: one is the formal element, and the other is the substantive element.

① Formal elements that constitute patent infringement.

First, the infringed patent must be valid. An invention-creation is protected by law only during the validity period of the patent right granted, and the implementation of the invention-creation by others may constitute an infringement of the patent right. Before the grant of the patent right, after the expiration of the patent right, or after the patent right has been declared invalid or terminated, the act of another person does not constitute patent infringement.

Second, the perpetrator must be without the consent of the patentee. Only the implementation without the consent of the patentee may constitute patent infringement.

Third, the perpetrator must be for profit. Any implementation of another person's patent for the purpose of production and business will cause the loss of the patentee's interests and thus constitute infringement.

Fourth, the conduct of the perpetrator does not fall under the circumstances otherwise provided for by law. If, without the consent of the patentee, but otherwise provided in the Patent Law, the perpetrator is allowed to use it, it does not constitute infringement. For example, the enforcement of a patent under a compulsory license may be carried out without the permission of the patentee.

② Substantive elements constituting patent infringement

The essential element of patent infringement, that is, the technical condition, refers to whether the implementation of the act falls within the scope of protection of the patent right. If the technical characteristics involved by the actor fall within the scope of patent protection, then the actor may constitute patent infringement.

(2) Performance of patent infringement

① Direct tort

According to the provisions of Article 11 of the Patent Law, without the permission of the patentee, the act of manufacturing, using, promising to sell, sell or import patented products of inventions and utility models for production and business purposes, or using the patented method and using, promising to sell, sell or import products directly obtained in accordance with the patented method, or manufacturing, promising to sell, sell or import patented products of designs, it is an infringement of patent rights. These acts are direct infringement of the right holder's patent rights.

② Indirect infringement

Indirect infringement means that the behavior of the actor itself does not constitute infringement, but induces, instigates and abets others to implement other people's patents, and direct infringement occurs. The actor subjectively induces or instigates others to infringe on patent rights, which objectively provides the necessary conditions for the occurrence of direct infringement.

The object of indirect infringement is limited to special goods, not common goods. A special product here is a key component that can only be used to implement another person's product, or an intermediate product of a method patent, which forms part of the implementation of another person's patented technology (product or method) and has no other purpose. In the case of a product patent, indirect infringement is the provision, sale or import of raw materials or components used to manufacture the patented product; in the case of a method patent, indirect infringement is the provision, sale or import of materials, devices or special equipment used in the patented method.

Common indirect violations, mainly:

Knowing that a major part of one's production is specially made for a patent infringer and is not generic may constitute an indirect infringement.

The complete sets of production accessories provided are assembled by others, and these complete sets of production accessories are sold in complete sets. If they are assembled together, they will inevitably constitute infringement of others' patents, which shall be regarded as indirect infringement. However, if the products produced are general-purpose accessories, after others purchase them, other accessories need to be added before they can be combined into products, which generally does not constitute indirect infringement except for common intention.

Indirect infringement arising from transfer or license. If a patent of another person is transferred or licensed to another person for production and use, in addition to the production or user constituting an infringement, the transferor or licensor may also constitute an indirect infringement.

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02, confirm the infringement or not

How to determine whether the other party's behavior infringes its own patent right? You can make a preliminary judgment according to the provisions of the Patent Law and other laws. For invention patents, utility model patents and design patents, the judgment rules of patent infringement are different. The following is a brief description of the judgment method of invention patent, utility model patent infringement and design patent infringement, in order to confirm whether there is a fact of patent infringement, so as to further take corresponding countermeasures.

(1) Confirmation of invention patent and utility model patent infringement

① Determination of the scope of protection of patent rights for inventions or utility models

The scope of protection of a patent for an invention or utility model shall be determined on the basis of the patent claims rather than the actual product. Therefore, when one's own product is inconsistent with the content recorded in the claims, although the other party's product is the same as one's own product, it may not constitute infringement.

According to Article 26 of the Patent Law, "Anyone who applies for a patent for an invention or utility model shall submit documents such as a request, a description and its abstract, and claims." "The claims shall be based on the description and clearly and concisely. Limit the scope of patent protection required". Paragraph 1 of Article 19 of the Regulations for the Implementation of the Patent Law stipulates that the claims shall record the technical characteristics of the invention or utility model. According to these legal provisions, the claims shall be composed of technical features reflecting the contents of the invention or utility model. The technical characteristics are determined, and the scope of protection of the patent right is determined.

In practice, when determining the scope of protection of invention and utility model patents, the following points should be clarified:

◇ The scope of protection of the patent right for invention or utility model shall be subject to the content of its claims, not to the words or wording of the claims. That is to say, the claims are the direct basis for determining the scope of patent protection for inventions or utility models. In this regard, the description and the drawings are subordinate. Although a technical idea is embodied in the specification or drawings, if it is not described in the claims, it is not within the scope of protection. The description or the drawings themselves do not determine the scope of protection.

The claims are only concise expressions of the necessary constituent matters recorded in the specification of the invention or utility model. In order to clarify the substantive content represented by the claims, the description and drawings should be referred to and studied to understand the purpose, function and effect of the invention or utility model. This reference and explanation should not be negative and passive, that is, only when there is ambiguity in the claims, refer to the description; it should be positive and active, and refer to the description and drawings from the beginning. To determine the substance of the claims.

◇ In order to clarify the meaning of a term in a claim, it is sometimes possible to refer to the documents exchanged between the applicant and the patent office during the application process, especially what the patentee has recognized, promised, confirmed or waived in these documents, and cannot be repented by later accusing others of infringement.

② Refine the technical characteristics of the alleged infringement.

The scope of protection of invention patents and utility model patents is determined, and the technical characteristics of patents are determined. The next work is to refine the technical characteristics of the suspected infringing product or technology (referred to as the suspected infringing object) to compare its similarities and differences with the patent, and provide a basis for making a judgment of infringement or not.

③ Assessment of infringement through mutual comparison

Compare the necessary technical characteristics recorded in the decomposed patent claims with the technical characteristics of the alleged infringing object one by one, and judge whether it constitutes patent infringement by applying the following basic principles:

First, the application of the principle of comprehensive coverage.

The so-called comprehensive coverage means that the suspected infringing object reproduces all the necessary technical features of the technical scheme recorded in the patent claim, and the suspected infringing object corresponds to and is the same as all the necessary technical features recorded in the patent independent claim. The principle of comprehensive coverage, also known as the principle of coverage of all technical features or the principle of literal infringement, means that if the technical features of the suspected infringing object contain all the necessary technical features recorded in the patent claim, it falls into the scope of patent protection and constitutes patent infringement.

The principle of comprehensive coverage is the most basic principle for judging the infringement of invention or utility model patents. In practice, the principle of comprehensive coverage may also be applied in the following cases, and it is determined that the suspected infringing property falls within the scope of protection of the patent right, which constitutes patent infringement:

The necessary technical characteristics recorded in the patent independent claim are the upper concept characteristics, and the alleged infringement is the corresponding lower concept characteristics, constitute patent infringement.

If the alleged infringement not only contains all the necessary technical features recorded in the patent claims, but also adds new technical features, even if the technical effect of the alleged infringement is not the same as the patented technology, it should still be considered to fall within the scope of protection of the patent right and constitute infringement.

Second, the application of the principle of equivalence.

The so-called principle of equivalence means that one or more technical features of the suspected infringing property are literally different from the technical features protected by the independent patent claims, but after analysis, it can be determined that the two are equal technical features. In this case, it should be determined that the suspected infringing property falls within the scope of protection of the patent right and constitutes infringement. In other words, the technical features of the alleged infringing object are compared with the necessary technical features in the patent claims, where the different technical features are replaced by equivalent means and still constitute infringement.

Because in real life, it is rare to imitate other people's patented products or copy other people's patented methods, and most of the infringements are carried out on the basis of other people's patented technology. Therefore, although the principle of equivalence is not clearly stipulated in the Patent Law of our country, the application of the principle of equivalence to judge patent infringement has been recognized by the judicial practice of our country. However, like the principle of redundant designation, the principle of equivalence also expands the scope of protection of patent rights, and improper use may harm the public interest. Therefore, in judicial practice, the court is also quite cautious in applying the principle of equivalence.

When applying the principle of equivalence, the key is the understanding of the characteristics of equivalence. Equivalent features refer to features that can be associated with the technical features recorded in the patent claims by substantially the same means to achieve substantially the same functions and achieve substantially the same effects, and that those of ordinary skill in the art can associate without creative labor. For example, in the specific technical subject matter, a conveyor belt and a gear, a diode and a capacitor, a screw and a rivet, etc. can be regarded as equivalent to each other.

In determining whether it is an equivalent and applying the principle of equivalence, the following points should be noted:

◇ When judging whether the substitution means is equivalent to the necessary technical features to be replaced, it is not from the perspective of experts or individual examiners, but from the perspective of ordinary technicians in the technical field. Although there may be some flexibility in determining equivalence, it cannot be interpreted arbitrarily and must be based on the expertise of ordinary technicians in the technical field.

◇ When analyzing and judging whether there is equivalence, it should be based on the patent specification and drawings. Because the purpose and advantages or positive effects of the invention or utility model are not allowed to be written into the claims, these contents can only be learned from the patent specification, and the purpose and effect of these two parts are precisely the indispensable components of the content of the invention. When determining the scope of patent protection, we should not proceed from the technical characteristics in isolation, but also consider the purpose and effect of the invention.

The principle of equivalence is only applicable to whether the specific technical features in the alleged infringing property are equivalent to the corresponding necessary technical features in the patent independent claims, and not to whether the overall technical scheme of the alleged infringing property is equivalent to the technical scheme limited by the independent claims.

◇ For deliberately omitting individual necessary technical features in patent claims, making its technical scheme inferior to the patented technical scheme in performance and effect, and this inferior technical scheme is obviously caused by omitting the necessary technical features, the principle of equivalence shall be applied and it shall be determined to constitute infringement.

When applying the principle of equivalence, attention should be paid to the existence of a tort defense of estoppel. The principle of estoppel will be discussed in detail later.

(2) Confirmation of design patent infringement

Determine whether the design patent product and the alleged infringing product are the same or similar goods.

In the determination of design patent infringement, the first thing to do is to refer to the design classification table and consider the objective actual situation of commodity sales to examine whether the suspected infringing product and the patented product are similar products. Does not belong to similar design products, does not constitute patent infringement. However, it should be noted that although similar products are the prerequisite for the determination of design patent infringement, it does not rule out that under special circumstances, designs between similar products can also be determined for infringement.

② Determine the scope of protection of the design patent right.

Appearance design, refers to the shape of the product, pattern or its combination and color and shape, pattern of the combination of the rich aesthetic and suitable for industrial applications of the new design. Due to the great difference between the design and the invention and the utility model in nature, the determination of the scope of their protection is different. According to the provisions of Article 59, paragraph 2 of the Patent Law, the scope of protection of the design patent right is subject to the design of the product shown in the picture or photo, and the brief description can be used to explain the design of the product shown in the picture or photo.

③ Determine whether it constitutes infringement by comparing the design patent with the suspected infringing product.

Compare the design patent with the suspected infringing product to determine whether the suspected infringing product and the design patent constitute the same or similar, and if they are the same or similar, they constitute infringement.

In practice, the following issues should be noted:

First, whether the design of the patented product is the same or similar to the design of the suspected infringing product should be compared from the following aspects:

If the shape, pattern, color and other major design parts (essential parts) of the two are the same, the two shall be deemed to be the same design;

> If the main design parts (main parts) in the constituent elements are the same or similar, and the secondary parts are not the same, it should be considered as similar design;

> If the main design parts (main parts) of the two are not the same or not similar, it should be considered as different or not similar design;

> For designs that require color protection, it should be determined whether the shape of the design belongs to a known design. If it is known, it should only be judged on its pattern and color; if the shape, pattern and color are all new designs, it should be judged by the combination of shape, pattern and color.

Second, the determination of design patent infringement, that is, to determine whether the suspected infringing product is the same or similar to the design patent, should be based on the aesthetic observation ability of ordinary consumers (that is, the purchase group or user group of similar products or similar products of the design patent), It should not be based on the aesthetic observation ability of professional and technical personnel in the field to which the design patent belongs.

Third, to compare the design of the suspected infringing product with the patented product, the overall observation and comprehensive judgment should be carried out to see whether the two have the same aesthetic feeling. The focus of the comparison should be the main design part (main part) created by the patentee and the corresponding part of the suspected infringing product, to see if there is plagiarism or imitation.

Fourth, in the case that both parties to the patent infringement dispute have obtained and implemented the design patent right, if the two designs constitute the same or similar, it can be determined that the act of implementing the design patent right obtained later infringes the design patent right obtained earlier.

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03. Collection of Infringement Evidence

(1) What evidence of infringement is required

As a patentee, before filing a patent infringement lawsuit, the enterprise shall make necessary evidence preparation, that is, actively collect the evidence of the defendant's infringement. The core of tort litigation lies in the evidence, and the grasp of the evidence directly affects the outcome of the litigation. As the plaintiff, the enterprise should combine the constituent elements of tort liability and the particularity of patent infringement, collect and sort out various evidences such as documentary evidence, material evidence, audio-visual materials, etc., to form a complete chain of evidence.

① Evidence to prove the right holder and the scope of rights. This evidence usually includes:

> Eligibility for the identity of the subject. A natural person is an ID card, and an enterprise or institution is a business license or an institution registration certificate.

A copy of the patent certificate or patent register, proving the ownership status of the patent, the subject of the right, etc.

Patent licensing contracts and their filing supporting materials. Prove that you are a licensee and have a direct interest in the case.

> Text of patent licensing announcement. A patent for invention or utility model is a claim, specification, abstract and abstract drawings; a patent for design is a picture or photograph and a brief description authorized by the announcement.

> Annual patent fee receipts, evidencing continued validity of the patent.

> Utility model patent search report. Article 8 of the "Several Provisions of the Supreme People's Court on the Application of Law in the Trial of Patent Dispute Cases" stipulates that the plaintiff who brings a lawsuit for infringement of the patent right of utility model shall issue a search report made by the patent administration department of the State Council at the time of filing the lawsuit.

Evidence to prove the infringement and damages. This evidence usually includes:

> Objects and photos of infringing articles

> Advertising materials for infringing articles

> Sales invoices, purchase and sale contracts for infringing articles

> Evidence to prove the place of infringement, which is the basis for determining the jurisdiction of the court

Patent implementation license contract: the license fee agreed in the contract as the basis for claiming compensation.

> Financial audit report demonstrating the status of the loss

› Evidence of reduced sales by rights holders

> Evidence of sales of infringing products

> Reasonable costs of investigating the suppression of violations

After discovering the fact of infringement, the patentee may apply to the notary office to notarize the process of purchasing the infringing product and the infringing product purchased, or to inspect the infringement site (e. g. promise to sell) and the installation site of the infringing product, and obtain a notarial certificate, thus proving the defendant's infringement. The legal effect of evidence can be enhanced through notarized evidence.

Evidence to prove the identity of the infringer. This evidence usually includes:

> the infringer's industrial and commercial registration or other registration information, including legal representative, business place and address and other information

> Identification of the infringer

(2) Ways of gathering evidence

Investigation and evidence collection is sometimes extremely difficult and arduous. Enterprises should collect relevant evidence of infringement litigation through various channels, including hiring lawyers or professional institutions, to support the litigation, or to grasp the initiative of negotiation.

Gather evidence through your own efforts. Much of the evidence in tort litigation is collected by the parties themselves.

② Collect evidence through a notary office. At present, notarization of infringement facts by notary public and obtaining evidence are becoming more and more common in intellectual property litigation. Since the probative power of notarized evidence is higher than that of unnotarized evidence, the court will generally determine the validity of notarized evidence unless there is evidence to the contrary. In addition, the court's requirements for audio-visual evidence are very strict, and it is easier to be accepted by the court to obtain audio, video, photography and other evidence through a notary office.

The use of administrative organs to collect evidence. The patentee may report to the administrative law enforcement department and request to investigate and deal with the patent infringement activities. In the process of investigating infringement by administrative organs, many evidences that are usually difficult to obtain can be obtained, such as the sales records of infringing products. These evidences, including administrative decisions, can be the source of evidence for courts to accept infringement compensation cases.

④ Request the court to preserve evidence. After filing a lawsuit with the court, the party may apply to the court for the preservation of the evidence if the evidence is likely to be destroyed or lost or difficult to obtain later. The usual practice is for the parties to provide preliminary evidence to prove the existence of infringement and to apply for the preservation of evidence. After filing the case, the court will examine the request and guarantee of the parties and make a decision on whether to grant it according to the actual situation of the case. If granted, a civil decision is issued and executed by specialized personnel.

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04, clear litigation objectives

What is the goal of patent infringement litigation? Just to get infringement damages. Patent infringement litigation is often used as one of the strategies of market competition, especially when the market is depressed, companies with patent advantages often use patent litigation as a weapon to ensure their commercial profits and market share. It can be seen that obtaining compensation is not entirely the expectation of enterprises to initiate litigation.

In this case, before initiating a patent infringement lawsuit, an enterprise should be clear about the purpose of its lawsuit, for example, to increase market share or to obtain royalties (royalties), and need to assess whether these objectives can be achieved through patent infringement litigation. Below we briefly describe some common purposes of patent infringement litigation.

(1) Obtain compensation for infringement

Some enterprises launch patent infringement litigation, the basic purpose is to obtain considerable infringement compensation. In many cases, some companies also deliberately indulge other people's infringement, and then wait for the opportunity to crack down, with infringement compensation as their main revenue.

(2) Expulsion of Unfair Competition

Some of the lower threshold of the industry, the same industry competition of enterprises can be described as dry army, one after another. State-owned enterprises, township enterprises, private enterprises, foreign-funded enterprises, countless, leading to vicious competition in the industry is particularly serious, enterprises copy each other's products. Some companies launch patent infringement lawsuits and don't care whether they can get compensation. The key is to take the opportunity to crack down on competitors and eliminate disorderly counterfeit competition.

(3) Competition for market share

Some companies launch patent infringement lawsuits in order to squeeze competitors out of the market and monopolize the world. Alai Company of the United States and more than a dozen companies such as Hitachi, Nippon Steel and TDK of Japan have developed a smelting technology for amorphous metal materials. Alai Company successfully developed and applied for patent rights several months ahead of other companies, so it filed a lawsuit with the United States International Trade Commission, accusing more than a dozen companies such as Nippon Steel, Hitachi, TDK, etc. of infringing their patent rights, thus pushing Nippon Steel and more than a dozen other companies out of the American market, and then using this patented technology to enter the Japanese market, companies such as Nippon Steel had to pay Alai $23 million a year in royalties to barely maintain the domestic market.

(4) Issuance of patent license

Some enterprises carry out patent infringement litigation or threat of litigation, not to drive the opponent out of the market, but to force the other party to give in and accept the patent license, of course, sometimes in order to force the other party to accept the license at a higher license fee.

(5) Consume the defendant's resources

Litigation around patent infringement, including administrative mediation, customs protection, and infringement warnings related to it, will cause greater or lesser interference to the defendant and consume its time cost and economic resources. In particular, overseas patent infringement lawsuits, with tens of thousands of dollars in legal fees, will make some small and medium-sized enterprises fearful, exhausted and financially difficult to resist.

(6) Damage to the image of the accused

Intellectual property disputes, including patent disputes, have now become the focus of media coverage. Regardless of the outcome of the lawsuit, the business as the defendant is often suffering. First, it damages the long-term business image of the company and shakes the confidence of corporate customers and partners; second, some misleading news reviews often use the accused company as a typical teaching material for infringement (in fact, these companies may not have infringed), educating the public to respect intellectual property rights, which will damage the business reputation of the company.

(7) Free advertising

Companies that initiate patent infringement lawsuits, sometimes cleverly, can benefit from media coverage, or at least free publicity. Some companies have begun to use patent litigation, especially against multinational companies, as a shortcut to enhance their corporate image and visibility. For this reason, these enterprises often take the initiative to invite media reports, and even hire international public relations companies to plan, in order to hype themselves and hurt each other.

(8) Achieve commercial cooperation

Some companies use patent infringement allegations to force defendants to cooperate with them and accept unfair conditions. For example, Chint Group, which is second to none in the domestic low-voltage electrical industry, has been "harassed" by foreign counterparts ". These peers are "Big Macs" in the international market, such as ABB in Switzerland and Schneider in France. They come to find Chint's "stubble", that is, they think Chint is a stumbling block to their entry into the Chinese market. Chen Jianke, vice president of Chint, revealed that Chint has more than 2000 sales outlets across the country, and foreigners have long been salivating, because if they want to enter the Chinese market, the most convenient way is to use these more than 2000 sales outlets. So they found Chint and proposed to cooperate by setting technical standards and Chint playing their brand. This was naturally rejected by Chint, so they said Chint infringed more than 100 of their patents.

(9) Shock the infringer

Tort litigation is a strong signal that others should not be involved in the infringer's footsteps, otherwise they will suffer the same end. In this way, it can put pressure on existing or potential infringers and effectively reduce their own rights protection costs.

The commercial purpose of patent litigation is very complex, and in addition to some of the commercial purposes mentioned above, the patentee may initiate patent infringement litigation based on specific individualized commercial considerations.

As a plaintiff, the company should consider the budget of money and time, and should conduct a rational analysis of the costs and benefits of litigation, and do not act blindly. Companies must ask themselves: What is the goal of litigation? Is the litigation strategy consistent with its goals? What additional costs must be paid for adopting these litigation methods? What benefits can it generate?

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05, the formation of litigation team

After the previous preliminary judgment, it is concluded that patent infringement litigation can be initiated, and then personnel should be arranged as soon as possible to deal with litigation affairs, such as external intellectual property lawyers or corporate legal personnel, and arrange corresponding professional and technical personnel to assist in handling Technical issues involved in patent litigation.

Professional matters are done by professional people. Compared with general civil or economic litigation, patent litigation is very complicated and may involve procedures such as patent invalidation and patent administrative litigation. Moreover, the patent itself is a combination of legal and technical factors. If you do not hire a professional intellectual property lawyer, it may be difficult to successfully complete the litigation.

If the enterprise has intellectual property consultants or intellectual property legal personnel, it can also be directly handed over to internal intellectual property professionals to handle litigation matters. In addition, after deciding to initiate patent infringement litigation, it is best to immediately assign senior experts in the relevant patent technology field within the company to cooperate with litigation lawyers to assist in handling technical issues in patent litigation.

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06, testing the possibility of reconciliation

Before filing a formal lawsuit, the patentee may send a warning letter or a warning letter (Notice letter) of infringement to the defendant in advance to test the possibility of settlement if he wishes to resolve the dispute peacefully. It is naturally most appropriate to negotiate reconciliation with the infringer and end peacefully by means of authorization and cooperation, and to achieve their desired goals. If the other party does not have the sincerity to settle, or even has no response, consider initiating proceedings.

However, it should be noted that before sending the warning letter, the investigation and evidence collection before the lawsuit must be done well, otherwise the defendant may have some defense immediately after receiving the infringement warning, which will make it difficult to obtain evidence or even transfer the evidence.

The writing of the infringement warning letter can be flexible according to different situations, and the tone can be tough or moderate. In general, the warning letter should state the following:

The patent number of the patentee, the main rights of the patent content;

The other party's product or method infringes the patent right, and hopes that the other party will suspend or prohibit certain infringements;

◆ When will the other party respond to this;

If the other party does not reply, the patentee may take measures.

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07 Filing a Tort Suit

Patent litigation is full of the application of law and wisdom. We will not go into the details one by one here. We will only use the four W (who, where, when, what) as the introduction to discuss some relatively important issues.

(1) Who is the defendant?

From the perspective of patent infringers, there are roughly manufacturers, sellers, users, importers and other types, and when these infringers exist at the same time, to whom should the enterprise, as a patentee, claim its rights? Is it a full-line attack or a separate attack?

If the patentee does not want to stretch the front and disperse its forces, it can be aimed at these infringers and estimate the extent to which their infringements damage the interests of the patentee, thus prioritizing patent infringement litigation and waiting for opportunities to attack one by one. For example, among multiple infringers, choose the defendant with the most compensation ability, or the competitor that needs to be attacked most, or the famous multinational company as the priority litigation object.

However, it needs to be reminded that it is easier to get compensation and fame by choosing large companies to file a lawsuit, but these large companies are often very strong in their ability to fight back in patent litigation, and they also have the strength and financial resources to fight litigation. Therefore, sometimes the choice of some weak defendants, but easy to win, and can establish a successful precedent to combat patent infringement, in order to influence the subsequent infringement cases.

(2) Where to prosecute

For the plaintiff, hold the initiative to choose the place of action. Choosing a suitable place for litigation is also a factor in ensuring the success of litigation. Why do you need to choose a place of litigation? There are many strategic considerations here.

① If the place of litigation is convenient, the cost of litigation can be saved. For example, if an enterprise with its business premises in Shanghai files a lawsuit against a foreign enterprise in a local court in Shanghai, it can not only save a lot of travel expenses and time expenses in foreign litigation, but also facilitate the exchange of legal documents and the conduct of legal procedures; but also take advantage of the right place and bring huge litigation costs to the defendant, resulting in strong litigation pressure.

Choosing the right place for litigation can also avoid local protectionism. If the defendant is a large taxpayer in the location, the litigation there may be resisted by local protectionism.

③ If the court of the place of action has a higher level of trial, it is conducive to a fair judgment. The difference in the level of the judge's trial naturally affects the trial of patent infringement litigation. my country has a vast territory, and the level of intellectual property development varies from place to place. Intellectual property cases are mainly concentrated in coastal areas such as Beijing, Shanghai, and Guangzhou. Many courts in the mainland rarely accept patent cases. Naturally, judges are not familiar with patent cases, which is not conducive to parties. Communicate with judges on case disputes. Therefore, choosing a court with a higher level of intellectual property trial is of great significance to ensure the fair judgment of patent infringement cases. Sometimes, the inclination and efficiency of the court and the quality of its judges are important to the development and outcome of litigation.

In foreign countries, multinational companies to fight patent lawsuits, the choice of litigation location, will also take into account these factors. For example, Philips of the Netherlands took advantage of the opportunity of South Korea's Sewon Telcom Co., Ltd. to participate in the World Telecommunication Exhibition and filed a lawsuit in the Düsseldorf court on the basis of its GSM mobile phone patent, accusing the latter of infringing the GSM mobile phone model on display. So why did Philips choose the Düsseldorf court in Germany? Why did it not file a lawsuit in other countries that sell GSM phones from the company Sewon Telcom? Because these courts are known in Europe and around the world as "pro-patent.

Due to the court's tendency to defend the right holder in patent infringement litigation, more than 70% of patent infringement litigation in Germany will be submitted to the court. Philips's estimate is indeed correct. Shortly after the indictment, the court issued a judgment in favor of Philips on 11 February 2004. The court even held that the exhibition itself was an infringing activity and that Philips did not need to prove other sales or dissemination activities of the defendant.

(3) When to prosecute

Choose what kind of time to sue, but also before the proceedings to consider. The choice of timing is different in different cases, but the basic principle is not to act hastily. Some patentees often file infringement lawsuits as soon as they find that there is infringement, and in litigation, they often cause passivity and even greater losses because of insufficient evidence, or because their patents are not patentable, or the other party does not infringe at all. Therefore, the prosecution must be careful, to choose a good time.

In many cases, the emergence of infringing products may not affect the economic benefits of the patentee, at this time, the patentee does not have to rush to file a lawsuit, but should make the preparatory work before the lawsuit as full as possible. Of course, since the statute of limitations for patent infringement is only 2 years in our country (calculated from the date when the patentee or interested party knows or should know of the infringement), therefore, the timing of the patentee's prosecution should not exceed 2 years. The statute of limitations, so as not to lose the opportunity to resolve the infringement problem.

If the patentee is confident of winning the case and is worried that the infringer will change production, change his business, destroy evidence or hide property as a result of filing a lawsuit, he may apply to the court for preservation measures before or during the prosecution, in order to facilitate the enforcement of the judgment after the case is concluded.

Of course, there are many strategic considerations in choosing the timing of litigation. For example, for the sake of greater profits, some enterprises are not in a hurry to sue after discovering the patent infringer, but to release water to raise fish and wait and see its success. It was not until these infringing enterprises developed to a large scale that they launched a lawsuit to collect nets for fishing, which not only dealt a heavy blow to the infringing enterprises, but also obtained more compensation.

In addition, some enterprises wait until the defendant enterprise is ready to go public before launching a patent infringement lawsuit, interfering with its financing plan; some enterprises choose to launch a patent infringement lawsuit against the defendant enterprise before the opening of the exhibition with greater influence, interfering with the defendant's customers and signing orders. All this, too numerous to mention.

(4) What to prosecute

In patent infringement litigation, it is natural to use patents to sue. However, for companies with many patent rights, in the face of defendants who infringe on their multiple patent rights, they need to consider which patent or patents to use to launch patent attacks. Taking all the infringed patents to litigation can guarantee more chances of winning the lawsuit, but because there are more patents involved, it will also delay the processing time of the whole lawsuit. If the company is not to obtain more compensation, but to drive the infringer out of the market as soon as possible, there is no need to make such a big fight. It only needs to take out the most reliable patent under the premise of being able to eliminate the other party's infringing products in one fell swoop. In the shortest possible time, attacking the other party's most clear infringement behavior can achieve twice the result with half the effort.

Some utility model and design patents, although commonly known as small patents, if their stability is strong, it is easy to obtain evidence in patent infringement litigation, and the trial period is relatively short, which is more likely to have some unexpected effects on the success of the case than invention patents. If an invention patent, utility model patent or design patent is applied for at the same time for a technological achievement, and the invention patent has not been authorized because of substantive examination, it is obviously the most appropriate choice to use the authorized utility model patent or design patent to attack the infringer.

In addition, since invention patents and utility model patents have the right to manufacture, use, promise to sell, sell, import and other rights, and design patents have the right to manufacture, sell, promise to sell, import and other rights, when filing a patent infringement lawsuit, the plaintiff must know which patent right he needs to claim that the defendant has infringed, such as the right to manufacture or the right to sell.