Issue About The Patent Infringement And Relief

With the deepening economic globalization, countries in economic and tradeexchanges have become closer, the increasingly prominent role of science andtechnology on the development of productive force countries to encourageinventions and to develop a set of rules specifically for the protection of patents andintellectual labor achievements, given him the monopoly of the right. Developedcountries as the representative of the United States have not only the number ofpatents ahead of the developing country, but also set the more mature protectionsystem of rules on the protection of the law. The United States has become China’slargest trading partner, bilateral trade friction is not uncommon, while the patentedtechnology is most affected. However, when Chinese enterprise has to face theforeign-related intellectual property litigation as the defendant, most of them avoidparticipating in litigation, because they can’t know the foreign intellectual propertylaws well and the litigation will be expensive. As a result, If the defendant doesn’trespond to the suit, judgment may be rendered against him by default. The ancientsaid:“know yourself as well as the enemy, you can get victory in every battle.” Sowe need to comprehend foreign intellectual property system seriously, summary ofresponding skills, develop the responding program, correct attitude is the key of theproblem.In the article, the author take the rules of patent protection in the United Statesas the starting point, There are four research methods in this paper: evidentialanalysis, logical demonstration, comparative analysis and normal analysis. It willplay an active part in the solution of foreign patents cases. In addition, the articleadopts the interdisciplinary analysis method, Jurisprudence provides the logical basis,the theory of tort law for damage compensation lays solid foundation, the contractlaw provides the institutional support for a patent authorized contract. First of all, the article introduces the case of “Enzo”, through the detailedanalysis on the case and the judgment of the court, we can sum up the rules of theUnited States patent protection of the entity and the procedure rules, For example,the proof responsibility, Steps and standards of the patent infringement; Next theauthor stands the plaintiff and defendant position in respectively, and proposes adifferent strategy of responding to the preparation, such as whether the patenteemarked the patented number is the key to the patentee to get compensation fordamage in the future, defendant can file a countersuit to fight for a more favorablebargaining chip in the proceedings, then the following analysis of patentinfringement remedies, we can conclude that tort for damage is different fromstopping the infringement and getting rid of the impediment, the applicablecondition is different; This article focuses on the tort for damage calculation basis.Our laws don’t have the provisions of the operation about the way to assure thedamage, the method of calculation and degree need to prove. We should implementthe principle “who advocate, who proof” to both sides, the judge as an independentthird party according to the content that the right holder can prove as the basis. Forexample, the loss of the holder, the infringer’s gain, the existing patent license fees,research and development costs. We can not only make up the loss of the holder, butalso can avoid repeating infringement because of the low infringement cost; At last,author puts forward the improvement of the patent infringement remedies, Not onlythe amount of compensation achieves a fair and reasonable level and play adisciplinary role, but also establishes the minimum compensation standards that theresearch and development have cost. We should analyze the value of the allegedinfringing products. We can compare the core technology with patent technology, wecan engage the industry experts to assess the proportion of the tort technology inproduct and determine compensation for damage amount according to the proportion.We will help the plaintiff to get the share belong to him, and also won’t make thedefendant loss his work achievement; In addition, what we can’t ignore the problemis that an international intellectual property litigation cost is high, medium and smallenterprises are difficult to taking so much spending, there is a need to establish tradeorganization to help enterprises to tide over the difficulties, the development of enterprise have a positive role. The plaintiff gets the profit what belong to him andwon’t let the defendant suffer a loss. In addition, we can’t ignore the problem thatcross-border intellectual property litigation will cost high, medium and smallenterprises are difficult to bear so much spending. So it’s necessary to establish tradeorganization to help enterprises to ride out the storm. It will play a positive role inthe future development.Relief and protection of the patent infringement is good for motivating theinventions of people to continue inventing new technologies and inventions, all righthave the danger of abusing without constraint. With the deepening of trade, thenumber of patent litigation will be on the raise, so we should deal with it calmly. Wecan learn other country’s legal rules to safeguard our legitimate right and interests.We can summary the procedural rules and substantive rules in application ofstrategic and tactics so that we can fight the maximize performance for the initiative.We can also increase bargaining chips in the reconciliation program in the future andavoid fearing responding because of the legal rules. We can establish the overseaslitigation industry association to help small and medium-size enterprise participate incross–border litigation. Through that we can prevent the situation that the defendantcan’t appear in the court because of the high cost.