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Patent Infringement Appeal Instruction

 

IF you encounter a patent infringement complaint, and you believe that your product does not make an infringement, How do you need to raise an effective appeal?

This guidance will take you to understand:

1. Types and basic meanings of patents.

2. What are the penalties for patent infringement?

3. How to search the complainant's patent and related intellectual property?

4. How to raise an appeal and provide evidence.

 

1.Types and basic concepts of patents (chinese law as reference )

(there are maybe some differences of the types of patent in different countries and regions)

 

? Article 2 of the Patent Law :    “Invention & Creation” as used in this law refers to inventions, utility models and designs(there also are some countries or regions do not have the concept of utility models)    Inventions refer to new technical solutions proposed for products, methods or improvements.

Utility models refers to a new technical solution suitable for practical use proposed for the shape, structure or the combination of them towards the product.    Design patent refers to new designs that are suitable for industrial applications based on the shape, pattern, or combination of them , as well as the combination of color, shape, and pattern.

 

? Article 59 of the Patent Law :   The scope of protection of an invention or utility model patent is subject to the content of the claims, and the description can be used to interpret the scope of the claims.    The protection scope of the design patent right is based on the design of the product shown in the attached picture , and the brief description can be used to explain the design shown by the picture.

 

   Analysis:

   Patent rights include three types: invention, utility model and design. The invention mainly relates to the structure and method, the utility model patent only relates to the shape and structure of the product, and the design relates to the overall appearance and form of the product.

  The scope of protection of invention patents and utility model patents is the scope determined by “text description”. If the technical features of the merchant’s goods alleged infringement fall within the scope of the text description, the invention or utility model patent right will be infringed;

  The appearance of the alleged infringing product is compared with the patent. If the appearance of your goods is identical or substantially identical, it falls into the protection scope of the design patent.

 

2. What penalties will be imposed on patent infringement?

Refer to the Intellectual Property Rules of Alibaba:

https://rule.alibaba.com/rule/detail/11000392.htm

IF you are seller on  AliExpress (阿里巴巴全球速賣通),please click the link as follows:

https://sell.aliexpress.com/zh/__pc/intellectual_property.htmspm=5261.8132709.0.0.458b5fc0Hsi4br

 

(1) Serious violation: The judgment depends on the specific circumstances of the case.Accumulative number of vibrations will be recorded, three violators will lead to accounts being closed.

 

(2)General violations: Unauthorized sale of products using other's patents (including design patents, utility model patents or invention patents, etc.) without the permission of the intellectual property owner , and other acts of improper use of the patents of others without the permission.

 

   Penalties of General violations

  1) 0 points will be deducted for the first violation (Warning

  2) 6 points will be deducted for each subsequent violation

  3) the account will be closed if the accumulated score reaches 48 points

 

Alibaba has rights to impose penalties on the violations and the stores, including but not limited to (i) Deleting products/information; (ii) Restricting product's release; (iii) Temporarily freezing the account; and (iv) Closing your violations account number.

 

For users whose accounts are closed, Alibaba has the right to take measures to prevent the user from registering on the alibaba platform again;

 

3. How to search the complainant's patent and related intellectual property

   You can focus on the patent  searching method as follows:

   Chinese patent:http://cpquery.sipo.gov.cn/ (中國及多國專利審查信息查詢)

   United States Patent:http://patft.uspto.gov/netahtml/PTO/search-bool.html

   European Union Patent:https://euipo.europa.eu/eSearch/

Find the patent number on your appeal pages:

https://appeal.alibaba.com/complaint/seller/appeal.htm

IF you are seller on AliExpressc(阿里巴巴全球速賣通),please click here:

https://appeal.aliexpress.com/complaint/seller/appeal.htm

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4. How to raise an appeal and provide evidence?

   THERE ARE 3 DIFFERENT APPEAL METHODS CAN LEAD YOU A HAPPY ENDING

 

  1th. If your product is different from the complainant’s patent, you can claim the difference

   (1) How to prepare the comparison materials?

  Cases of the type of design patent-you can claim that the overall appearance of your product is different from the that of the design involved, that is, there is a significant difference or difference.

Invention/utility model cases-you can claim that the product lacks one or more of the technical features of a certain invention/utility model's claim, and therefore does not fall into the scope of protection, and provides more specific comparisons Description or comparison table.

 

  Example 1.0: You can submit a comparison table and description similar to the following to claim the difference, maybe you are recommended to provide separately segments:

  a.The closest prior design (the prior design before the complainant’s patent application date),

  b.The complainant’s patent

  c.Yours products alleged infringement

  and explain why are they different? If you cannot find the closest prior design, you can only provide the complainant’s patent and the specific comparison of your product.

   SPECIFIC EXAMPLE OF DIFFERENCE COMPARISON:

Closest Prior Design

Complainant’s Patent

 

Your Products

 

Comparison of Difference

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截屏2021-03-22 下午6.39.14.png

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The shape of the complainant’s head is different from the product

 

The pattern of the complainant's is different from the product 

截屏2021-03-22 下午6.41.18.png

截屏2021-03-22 下午6.41.27.png

截屏2021-03-22 下午6.41.34.png

my prodcuts don't have wings on the back compared with patent.

Note:  I have claimed a difference,can you tell me reasons why my appeal is not approved?

Design patent judgments need to be overall compared. subtle, and material differences cannot be used as reasons. These differences are subtle differences and will not have a significant impact on the visual effects of the overall appearance of the product. In the same way, in an invention/utility model case, if the technical features of the product are the same as one or more of the claims of the patent , it will also fall into the scope of protection of the patent.

 

(2) How to raise the appeal?

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  2th: If you think the patent of the complainant has already been disclosed, you can provide prior disclosure materials that are earlier than the time of the complainant’s patent application. If the complainant’s patent has priority date, the materials you provided shall be earlier than the priority date of the patent.

 

   (1) What does the prior certification information mean?

   That is to say, there are relevant public information that can prove that the patent of the complainant has been disclosed. For example, the product style, design or plan of the previous sales order or website public information is consistent with the product being complained, or the patent of the complainant, and the public information's time is earlier than the “patent application date” (or priority date ) of the complainant.

 

   (2) How to find the patent application date of the patent?

   Method 1: Downloading the complaint's materials on the intellectual property appeal page and you can find the application date of the patent on its patent certificate.

    Method 2: Search on the patent search website of the mentioned  Intellectual Property Office.

    Chinese patent:http://cpquery.sipo.gov.cn/ (中國及多國專利審查信息查詢

    United States Patent:http://patft.uspto.gov/netahtml/PTO/search-bool.html (美國專利查詢)

    Europe Union Patent:https://euipo.europa.eu/eSearch/ (歐洲地區專利查詢)

 

 

  (3) What materials can be provided in the appeal as prior proof?

     Method 1: Alibaba’s prior order ( provide order number + order screenshot)

    For example, the orders on Taobao/Tmall/1688/Alibaba.com or AliExpress etc.can be used on the Alibaba platform. Orders on other websites cannot be checked for details are not recognized. The screenshot of the order needs to include the specific order number, time,goods information,as long as it is on the Alibaba platform The order is sufficient,it is not required that it must be the sales record of the seller under the complaint you also can provide us the orders from third-parties if any

      ! ! ! Please pay attention:

    The style, design or pattern of the goods in the order must be consistent with the goods being complained, or consistent with the complainant’s patent, and the order must be placed earlier than the “ application date” of the complainant's patent . If the complainant’s patent has  priority date, it shall be earlier than the priority date.

 

     Method 2: Proof of public publication in advance (link address + publication data screenshot)

     Publication of materials such as Youtube. Youku.Twitter.Weibo.Facebook, large-scale video portal sites, newspapers, magazines, books and other corresponding copyright public publication materials.

     Example 2.0:

    Tom opened a Alibaba store selling water guns and other toys. Tom has been complained of patent infringement. he found a previous video on YouTube. If he wants to raise an appeal by the publicly published certificate, what needs to be verified?

(1) The video time needs to be verified, before the patent application date/priority date of the complainant's patent.

(2) It is necessary to ensure that the water gun in the video is consistent with the product being complained or the complaint's patent.

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     Method 3: Prior rights certificate (You Should Pay More Attention)

     If you have your own patent or a third-party authorized patent, please confirm that the patent application date is earlier than the claimant’s patent application date/priority date, and that the patent is consistent with the product being complained about, or the patent publication date is earlier than the filing date of complaint's patent ,and its own patent is consistent with the patent of the complainant.

 

 Note: If the patent application date is late, your appeal will not be supported; in addition, if the patent is inconsistent with the complained product/patent of the complainant, the appeal will not be supported.

 

   3th: if your goods alleged infringement are from the intellectual property owner, you can provide the proof of the source of the product, such as the Authorization Letters / Purchase Certificates.

(1)Direct procurement

    If you claim that the product being complained is purchased from the patent owner, please provide the invoice between the two parties.the contract or invoice must be signed or sealed by patent owner. The information of the transaction materials must be consistent with the information of the product being complained (note: the transaction time must be within reasonable period before the complaint submission time and the transaction quantity shall be reasonable too)

(2)Indirect procurement

    You need to provide relevant purchase certificate, such as contract, invoice, etc. if purchased from the agent , you need to provide purchase certificate together with the authorization letter of the patent owner authorizing the agent to sell.

    (3) Patent License

     If you claim to obtain the patent license of the patent owner, please provide the patent license agreement between the two parties. The agreement must be signed or sealed by both parties. During the license period, the patent number involved in the license agreement should be consistent with the patent used in the complaining procedure in this case and can be inquired, or provide complete purchase certificate to verify it;

    For details, please see:

    Alibaba.com:   https://rule.alibaba.com/rule/detail/11000407.htm

    AliExpress (阿里巴巴全球速賣通)

https://sell.aliexpress.com/zh/__pc/intellectual_property.htmspm=5261.8132709.0.0.458b5fc0Hsi4br

    How to operate the appeal:

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FINALLY  PRETTY IMPORTANT lLINKS YOU NEED TO KNOW

Alibaba.com platform

1.Click the appeal pages to appeal directly :https://appeal.alibaba.com/complaint/seller/appeal.htm

2.Click to Link the alibaba.com rule center: https://rule.alibaba.com/rule/detail/11000407.htm

3.The alibab.com penalties rules can be checked :https://rule.alibaba.com/rule/detail/11000392.htm

AliExpress platform

1.Rule center of AliExpress (阿里巴巴全球速賣通)

https://sell.aliexpress.com/zh/__pc/intellectual_property.htmspm=5261.8132709.0.0.458b5fc0Hsi4br

2.Click the appeal pages to appeal directly:https://appeal.aliexpress.com/complaint/seller/appeal.htm

 

 

 

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