II. Litigation against: do not fall into the claim protection scope of the defense
 

Patent infringement in the case of technical features are identical rarely, in most cases, need to rely on the concept of equivalent infringement infringement determination. According to the Supreme People's Court's “Several Provisions on the Application of Law to the Trial of Patent Dispute Cases”, the so-called “equivalent features” refers to the features that are basically the same as those recorded in the technical features by basically the same means to realize basically the same function and to achieve basically the same effect, and that the ordinary technicians in the field can associate the features with the infringing acts without going through creative labor. Features that can be associated without creative labor at the time of the alleged infringement.

Judge whether constitutes equivalent infringement, need to interpret the scope of protection of the patent claims, usually the most common restrictive interpretation is to use the patentee in the patent examination or invalidation stage to obtain or maintain the validity of the patent expression, with the help of the principle of “estoppel” to restrict the patentee will be in the patent examination process has been given up the technical solution back into the patent infringement litigation. The principle of “estoppel” restricts the patentee from reintroducing the technical program that has been abandoned during the patent examination process into the scope of protection of patent infringement litigation. However, the accused infringer in the infringement defense should not only “estoppel” evidence retrieval scope is limited to the patent itself in the scope of the examination file, and the patent has a division with the patent and other patents and their examination files, should also be used as evidence of interpretation of the claims. In fact, the supreme people's court in the “on the trial of infringement of patent disputes on the application of law on a number of issues of interpretation (2)” also made corresponding provisions, “interpretation” of article 6: “the people's court can use and the patent in question there is the relationship between the patent and the patent examination file, the patent authorization of the validity of the decision to explain the claims of the patent in question. ”

In a patent infringement case concerning a measuring instrument for measuring the contact angle indicated by a liquid and a solid, the patent in question was titled a device for measuring the intrinsic contact angle, and by reading the patent specification, the defendant found that the so-called intrinsic contact angle was not a technical term in the industry, but a self-created concept by the patentee, who believed that the existing measuring instrument could only measure the apparent contact angle in a rough manner, whereas the purpose of the invention was to The purpose of the present invention is to obtain more accurate measurement data, not only to measure the contact angle of the liquid in the fixed state, but also to measure the contact angle of the liquid in the tilted state, and then to obtain a more accurate contact angle value after calculation, which is the so-called “intrinsic contact angle”. The claim of the patent mainly protects the hardware part of the measuring instrument, but does not include the software part such as obtaining and calculating the measuring parameters. The allegedly infringing measuring instrument is also a device for measuring the contact angle between a liquid and a solid surface, and it also measures the contact angle of the liquid in the tilted state through the tilting of the sample platform, and the hardware part of the operating equipment is very similar in terms of principle and method in realizing mechanical movement. As the allegation of infringement of the patent in question does not involve the comparison of the software part, if the hardware part is compared purely, the conclusion of equivalent infringement can easily be drawn as many technical features realize the same function.

After careful study, the defendant's agent decided to look for a breakthrough from the patent in question for the measurement method of intrinsic contact angle, and found out the patent submitted by the patentee about the measurement method of intrinsic contact angle by searching for the application of the patentee and the patent of the device in question with the relationship of divisionalization, and the patent was rejected due to the failure to respond to the examination opinion. Through studying the divisional application, it was found that the calculation process of the measurement of the so-called intrinsic contact angle was very complicated, which required 16 calculation parameters to be obtained through precise measurement by a measuring instrument, and then the value of the intrinsic contact angle was obtained through the arithmetic calculations such as the system of Jan Laplace equations, etc., and in order to obtain the 16 parameters, it was necessary to ensure that the measuring instrument had a high degree of sensitivity and precision, and thus certain differences between the patent in question and the allegedly infringing product Technical features have a substantial impact, for example, in order to ensure the clarity of the outer contour of the droplet when it is in the hanging state, the measuring instrument must use a parallel light source and a telephoto lens, whereas the allegedly infringing measuring instrument does not have such equipment. Through a series of comparisons of distinguishing features, the defendant determined the basic idea of defense, that is, the accused infringing equipment can only be used for conventional measurement of apparent contact angle, but cannot measure the intrinsic contact angle claimed by the patent in question. In the pre-trial meeting, the defendant showed the accused infringing equipment, detailed explanation of the difference technical features, to help the technical investigation officer to understand the significance of these distinguishing features. Finally, under the mediation of the court, the plaintiff and the defendant reached a settlement agreement.
 

III. Existing technology defense
 

In the alleged infringement of the implementation of technical solutions and patent claims protect some differences in the technical solutions, whether to use the principle of equivalence to determine infringement of the existence of disputes, if the alleged infringer can prove that the implementation of the technology belongs to the prior art, the court can directly make the conclusion that the infringement is not established, this is to shorten the statute of limitations, reduce the litigation is very useful, and is also a good defense of a multilevel Approach.

The comparison method of prior art defense needs to consider the following issues: firstly, the technical features recorded in the claims of the patent in question should be used as the guidelines and limitations to compare the technical features of the technical solution implemented by the alleged infringer with the corresponding technical features of the prior art, and it is not necessary to compare all the technical details of the two; secondly, the method of “individual comparison” similar to novelty judgment should be adopted; secondly, the method of “individual comparison” similar to novelty judgment should be adopted; and the method of “individual comparison” is similar to novelty judgment. Secondly, adopt the way of “individual comparison” similar to the novelty judgment, i.e., only compare an allegedly infringing technical solution with a piece of prior art, and not with a combination of several pieces of prior art; thirdly, the situation of “belonging to the prior art” includes the same corresponding technical features or no substantive differences, and the judgment of no substantive differences can be made with the help of “the technical features of the infringer's technical solution”. For the judgment of no substantial difference, can use the “patent examination guide” stipulated in the “direct replacement of the usual means” judgment standard.

 In Zhejiang Xiaozhi Electrical Appliance Technology Co. v. Guangdong Province Foshan City Shunde District Huashen Electrical Appliance Manufacturing Co., Ltd. Infringement of Utility Model Patent Dispute Case ((2019) Supreme Court Zhi Minzhen No. 804), the Supreme Court put forward the elements to be considered on how to judge whether it is a direct substitution of habitual means: first, whether there is a basis for substitution. Replacement is a placement substitution, which must be premised on the existence of the object to be replaced, and cannot be a combination of new features; secondly, one should stand in the perspective of the technicians in the field of technology to which one belongs in order to judge whether the means of replacement and the means to be replaced are customary; thirdly, it is necessary to consider whether it can be a direct replacement, i.e., before and after the replacement, there is no need to basically change the relationship between the corresponding features and the other features in the claims, and the process of replacement does not require any creative labor. Thirdly, we should consider whether direct replacement is possible. The Supreme Court's principles and steps for determining direct substitution of customary means are very useful for asserting a prior art defense.

There is a Fujian steel casting factory A factory, has been cast iron raw materials to produce steel sand, and later through repeated research experiments, the factory researched a new method of producing steel sand, which is to make steel sand by quenching and crushing the leftover edge wastes from the bearing factory during the production of bearings. Unfortunately, this enterprise did not apply for a patent for this method. Later, another enterprise in the province, Factory B, also used the bearing waste to produce steel sand, and applied for a patent for the production method, and then filed a patent infringement lawsuit against Factory A. Factory A claimed that the process used by it belonged to the prior art, and provided a news report on the use of bearing steel to produce steel sand in the Wuhan Steel Factory in 1979 as evidence of the prior art defense of Factory B. However, the news report mentioned the use of bearing steel to produce steel sand in the Wuhan Steel Factory in 1979 as evidence of the prior art defense. However, the production process mentioned in the news report did not contain a detailed account of the crushing of bearing scrap, and the court held that the prior art defense claimed by Factory A was not valid, and Factory A lost the case in both the first and second trials. Although Factory A filed a patent invalidation with the Patent Reexamination Commission, it was only after repeated invalidation proceedings as well as administrative litigation that Factory B's patent was finally invalidated. However, it could not play any role in the infringement compensation judgment that had been executed.

The patent in question is a method of invention patent, the evidence preserved by the right holder is the steel sand products, to this point the right holder's claim of infringement is only an inference, the alleged infringer still has room to argue, for example, can prove that the use of bearing steel production of steel grit is not a new product, only method of invention of the product directly obtained by the product is a new product of the case, the alleged infringer to bear the burden of proof reversed the obligation to prove the method of producing steel grit is different from the patented method of production of steel grit is different from the patented method of producing steel grit. The method of producing steel sand is different from the patented method to provide evidence to prove. But the alleged infringer obviously has no experience in this regard, neither claimed bearing steel as raw material steel grit is not a new product, nor to provide its own method of production of steel grit, if the alleged infringer is worried about their own process secrets are disclosed, you can request the court to take confidentiality measures, commissioned by the appraisal organization identification, etc., can not be simple to provide other manufacturers of the production process of the report as the production process of the party has the evidence, the evidence. This is because the claim of prior art defense, is required to the allegedly infringing technology and the technical characteristics of the prior art comparison. Therefore, the court did not adopt the defendant prior art defense claim.
 

IV. Other means of defense
 

1. the defense of non-productive business purposes
 

“For the purpose of production and management” is one of the evaluation elements of patent infringement, but in judicial practice, there is some controversy over the determination of this element, especially government agencies, institutions, public welfare institutions and other institutions to perform the duties of public administration or social services or to engage in public welfare activities, the use of other people's patented technology, the production of patented products, there are disputes. There is a dispute as to whether it constitutes patent infringement. The Supreme People's Court, in its Civil Judgment No. 831 (2020), put forward the elements to be considered when judging the element of “for the purpose of production and management”: firstly, it cannot be simply equated with actual profit; secondly, it cannot be determined solely on the basis of the institutional nature of the subject of the implementation; and thirdly, it has to focus on the specific infringing act and consider whether the act is a comprehensive infringement of the patent. Thirdly, we should focus on the specific infringing acts, and consider whether the acts belong to the participation in market activities and whether they affect the market interests of the patentee and other factors to make judgment. Government agencies, institutions, public welfare institutions and other non-production and business activities of the main body, the implementation of the patent, participate in market activities, may damage the patentee's market interests, can be recognized that its behavior has “for the purpose of production and management. Therefore, in the use of this defense, the nature of the implementation of the subject's behavior to determine whether it can be supported.
 

2. Exhaustion of rights defense
 

China's “Patent Law” clearly stipulates that the “parallel importation” of patented products applies the principle of exhaustion of rights, therefore, when it comes to the allegedly infringing products are imported products, you can consider whether to apply the defense.
 

3. Implied License Theory
 

The act of making and selling a patented product by the patentee or its licensee may not only involve the patent right on the product itself, but also other patents owned by the same patentee in connection with the product, such as a patent on a special production method for the use of the product. After legally obtaining the patented product from the right holder, does the user need to obtain additional permission from the patentee to use the patented product in the production method protected by the right holder's method patent? If no express permission is obtained, does it constitute infringement of the patentee's patent for method invention? The author believes that, in this case, as long as the patentee or its licensee in the sale of its patented product does not expressly put forward restrictive conditions, can be “implied license” as a defense.
 

V.    The choice of patent defense strategy
 

In the existence of a variety of patent infringement defense remedies, how to choose and arrange the patent defense strategy, for the progress of the case has a great impact.
 

       1. Use of strategy combinations
 

In China, patent invalidation requests are filed with the State Intellectual Property Office (SIPO), while patent infringement lawsuits are heard in the courts, which are not responsible for examining the validity of the patent as the basis of the right. This separation of administrative and litigation procedures makes the accused infringer overly dependent on the patent invalidation procedure, or lack of communication and coordination between the patent invalidation procedure and the patent litigation procedure, which is unsatisfactory. Only by combining the two procedures with each other can they be used like a combination in boxing, combining the real and the virtual to knock down the opponent. The steel sand case mentioned above is a case of over-reliance on the patent invalidation procedure which led to failure.

In that case, the crushing method adopted in the technical scheme of the patent in question is the traditional secondary crushing, i.e., coarse crushing with a jaw crusher and fine crushing with a magnitude crusher, which gradually crushes the bearing steel edges into the required size, which is the method adopted in the traditional process, whereas the crushing method in the production process of Factory A is to use a double-axis roller crusher to squeeze the waste material (flake) into the form of polygonal granules, i.e., primary crushing, which is in There are differences in the processes. Crushing method is the key technology to deal with high hardness bearing steel, due to double roller crusher roller material is high manganese steel, hardness is lower than the bearing steel, roller crushing consumption increases, and affect the quality of steel grit prismatic, so the roller hardness is low to affect the abrasion resistance has become the main problem, the A plant's primary crushing process solves the problem of wear resistance of the rollers. Therefore, the difference in the method of solving the crushing problem is a different technical means, with different technical effects, does not belong to the same infringement or equivalent infringement. If the A plant in the defense strategy to take not fall into the scope of protection of the patent claims and strategy, rather than taking the prior art defense, it is possible to win the case. In fact, factory B in the same period in jiangsu province against other enterprises in the patent infringement litigation, jiangsu province, the two courts have found that the alleged infringement method only “one level of crushing”, did not use the patent “two levels of crushing” technical features, not fall into the patent's scope of protection. Protection scope.

Therefore, priority should be given to the non-infringement defense claims that do not fall into the scope of protection of patent rights, and only in the case of the same or equivalent technical features, then consider the use of prior art defense claims. Only claiming the prior art defense is equivalent to agreeing that the technical features are the same or equivalent.
 

        2. Combination of comprehensive defense and key defense
 

In the patent infringement defense, can not think of the defense of a brain, and the lack of argumentation level. Need to consider the defense of the idea and focus, the most important defense and evidence at the forefront. The author on the infringement of the defense of the thinking path to give a simple diagram, easy to be accused of infringement of the organization of the defense evidence:

  (1) carefully study the plaintiff claimed the infringed patent claims and subordinate relationship, understand the plaintiff's patent right of the widest scope of protection and the narrowest scope of protection, the preliminary judgment of the accused infringing product or method falls into the scope of protection of the patent right;

  (2) If the scope of protection of the patent claims is broad, consider whether it is possible to invalidate the other party's patent in whole or in part through the patent invalidation procedure, or force the other party to amend the patent claims, so that the allegedly infringing technical program does not fall within the scope of protection of the patent;

(3) If the writing quality of the patent claims is poor and the scope of protection is narrow, consider whether the allegedly infringing technical solution will fall within the scope of protection of the patent right and whether the defense of non-infringement can be asserted;

(4) If, after evaluation, the allegedly infringing technical solution may be found to be identical or equivalent to the infringing technical solution, whether it is possible to use the prior art as a defense;

(5) If the technical solutions are the same or equivalent, whether the defense of “non-production and business purposes”, or the defense of exhaustion of patent rights, implied license, or prior use rights can be asserted;

(6) If the defense of infringement is not established, whether the defense of intentional infringement.

Patent infringement litigation has a strong professionalism, you can find a lot of defense points, therefore, in the face of patent infringement allegations, the alleged infringer does not need to panic and fear, by seeking professional help, you can minimize the loss and protect their own rights and interests.