Infringement Litigation
Procedure of Intellectual property infringement litigation
In fact, the procedure is very simple and it includes the following steps:
- collection of evidence conducted by lawyer together with clients before legal proceeding;
- application for court filing under corresponding jurisdiction of court;
- payment of court cost by client in according with Notice of court;
- notice to the parties concerned by court, wherein after step 3, court places the case on the docket, schedules for court hearing, and informs the time of evidence exchange and court hearing to the two parties;
- judgment made by collegiate bench after evidence exchange and court hearing;
- taking into effect of the judgment if the two parties do not appeal within 15 working days after the judgment is served, and if any party appeals, the case will be ruled by next higher level court, and the judgment is final and take into effect;
- enforcement of the effective judgment, and application for enforcement of the effective judgment to the court if the opposite party refuse to enforce the judgment.
Evidence of IP infringement litigation
Although trademark, patent, copyright and trade secret are quite different, and the professional knowledge in legal proceeding is also different, the almost all the lP litigation case relate to the following key evidences: certificate of right, evidence of infringement and evidence of damages. The party concerned must provide evidence truly, effectively and sufficiently to the court because the judgment is ruled based on the ascertaining fact proved by the evidences.
Patent infringement litigation
Evidences in patent infringement litigation include patent certificate, claims, description, payment certificate of patent annual fee and license agreement. Evidence of infringement includes products of alleged infringement, sales invoice, and comparison material for technical features between patent and products of alleged infringement. When the parties concerned purchase the infringing reproduced products in the form of purchase order or spot transaction by themselves or by agency, the physical objects and invoices obtained may be taken as evidence. When the notary public do not show their status to a party concerned who are suspect of infringing patent, the evidence actually obtained from the other party in the above-mentioned form and the notary certificate issued during obtaining of proofs shall be taken for use as evidence unless otherwise proved. The damages evidences include actual losses of the patentee or the illegitimate revenues of the infringing party, and reasonable expenses paid for stopping the infringing acts (generally including reasonable fees occurred from investigating on the infringing acts and obtaining evidence and reasonable attorney’s fees). If the actual losses or illegitimate revenues cannot be determined, compensation amounts will be reasonably determined as 1-3 folds of royalty fee. If there is no royalty fee or the royalty fee is obviously not reasonable, no more than 500,000 RMB of statutory damages can be judged by court in accordance with nature and seriousness of the infringement.
Trademark infringement litigation
Evidences in trademark infringement litigation include trademark certificate, license agreement. Evidence of infringement includes products of alleged infringement, sales invoice. When the parties concerned purchase the infringing reproduced products in the form of purchase order or spot transaction by themselves or by agency, the physical objects and invoices obtained may be taken as evidence. When the notary public do not show their status to a party concerned who are suspect of infringing trademark, the evidence actually obtained from the other party in the above-mentioned form and the notary certificate issued during obtaining of proofs shall be taken for use as evidence unless otherwise proved. The damages evidences include actual losses of the trademark owner or the illegitimate revenues of the infringing party, and reasonable expenses paid for stopping the infringing acts (generally including reasonable fees occurred from investigating on the infringing acts and obtaining evidence and reasonable attorney’s fees). In case the actual losses or illegitimate revenues cannot be determined, no more than 500,000 RMB of statutory damages can be judged by court in accordance with seriousness of the infringement.
Copyright infringement litigation
Evidences in copyright infringement litigation include manuscript, original copy, legal publication, copyright certificate, certificate issued by certification authority, and assignment agreement. Evidence of infringement includes products of alleged infringement, sales invoice. When the parties concerned purchase the infringing reproduced products in the form of purchase order or spot transaction by themselves or by agency, the physical objects and invoices obtained may be taken as evidence. When the notary public do not show their status to a party concerned who are suspect of infringing copyright, the evidence actually obtained from the other party in the above-mentioned form and the notary certificate issued during obtaining of proofs shall be taken for use as evidence unless otherwise proved. The damages evidences include actual losses of the copyright owner or the illegitimate revenues of the infringing party, and reasonable expenses paid for stopping the infringing acts (generally including reasonable fees occurred from investigating on the infringing acts and obtaining evidence and reasonable attorney’s fees). In case the actual losses or illegitimate revenues cannot be determined, no more than 500,000 RMB of statutory damages can be judged by court in accordance with seriousness of the infringement.
Trade secret infringement litigation
Evidences in trade secret infringement litigation include technical carriers such as R&D materials, documents and evidences of operating trade secret such as transaction contracts and invoices. If the person is authorized to use the trade secret, license agreement and technical carriers shall be provided. Confidential evidences in trade secret litigation usually include the following document: confidential agreement between the right owner and the job-hopping employee or any entity or person having business relationship, and confidential regulations formed by the right owner. In general，burden of proof for trade secret infringement is difficult, it always needs the assistance of government such as Public Security Department to collect relevant evidence, or it needs a professional conclusion made by judicial appraisal institute. Damages should be certified case by case, because the following factors need to be considered: type of infringing trade secret and seriousness of illegal behavior, and so on. The proper amount will be decided by court based on the evidences provided by parties concerned in combination of other factors.
General Procedure for intellectual property
Procedure before action
The plaintiff may take a legal action under a jurisdiction over an IP case of a court of the place where the defendant has his domicile or where the infringement is committed. In case the lawsuit relates to intellectual property contract, the plaintiff may take a legal action under a jurisdiction over an IP case of a court of the place where the defendant has his domicile or where the contract is implemented. If the parties to the contract agree to choose in their written contract the court of the place where the defendant has his domicile, where the contract is performed, where the contract is signed, where the plaintiff has his domicile or where the object of the action is located to exercise jurisdiction over the case, the plaintiff may take a legal action under a jurisdiction over an IP case agreed in the contract.
Procedure in action
- n lawsuit, the right owner may apply to the court to adopt proof preservation measures and property preservation measures.
- The parties concerned shall submit all the evidence within the time limit prescribed by court due to the importance of the evidence. If submission of evidence is not performed within the above time limit, extension of the burden of proof can be applied to the court by the party concerned. As the complicated IP litigation, the court would call up the two parties to exchange evidence before beginning the court session.
- In IP lawsuit, if the technical problem is too complicated to verify, the court may entrust qualified agency to identify the technical information upon application of the party concerned or that the court deems it is necessary, in order to solve the technical problem.
Subsequent procedure
If the judgment takes into effective, the judgment may be requested to perform by the party concerned. In case that the judgment is refused to perform or performed insufficiently, application of compulsory execution can be made to the court. In the course of execution, seal-up of the property of the person subjected to execution can be applied to the court by the party concerned.