1. What is the foreign patent litigation process

 

According to the provisions of Part IV of China's Civil Procedure Law, foreign-related patent litigation procedures mainly include the following contents: general principles; jurisdiction; service, period; property preservation; service of evidence collection, judgment and mutual recognition and enforcement of arbitration and other judicial assistance activities.

 

Foreign-related civil cases are different from ordinary civil cases. When a people's court hears a foreign-related civil case, if the foreign-related civil procedure has special provisions, the special provisions shall apply; if there are no special provisions, the general provisions of the Civil Procedure Law shall apply. The special provisions of foreign-related civil litigation procedures, as well as the general provisions of other civil litigation procedures, are guided by the basic principles of the Civil Procedure Law and implement the spirit of the basic principles.

 

Countries have different legislative approaches to foreign-related patent litigation procedures. From the perspective of legislation, there are roughly three approaches: the first is to formulate a separate foreign-related civil litigation law outside the Civil Procedure Code; the second is related to the Civil Procedure Code. In the chapter, special provisions are established for foreign-related civil litigation; the third is the establishment of special compilations and special chapters in the Civil Procedure Code to centrally regulate the special issues of foreign-related civil litigation procedures. China's Civil Procedure Law adopts the third legislative approach, and sets foreign-related civil procedure as a separate set in the Civil Procedure Law. This legislative style is not only convenient for the parties to grasp and follow, but also convenient for courts to handle cases, which has become a new trend in the legislation of foreign-related civil litigation procedures in various countries.

 

2. What to pay attention to in foreign-related patent litigation

 

In foreign-related patent disputes, due to different regions and special infringement objects, in the case of foreign-related patent disputes, first of all, you need to hire a professional legal expert to analyze the case and formulate a response strategy;

 

In foreign-related patent litigation, it is best to seek reconciliation. The high risk of patent infringement litigation, the length of litigation procedures and the huge costs that may occur make the possibility of reconciliation between patent litigation parties.

 

In the process of actively seeking litigation and settlement, some measures can be taken, such as raising objections in the jurisdiction of litigation and effective protest on other grounds. When Chinese companies receive patent infringement lawsuits from multinational companies, it is the best policy to respond actively.

 

When striving for an opportunity for reconciliation, it is also necessary to analyze the other party ’s patents clearly, excluding unnecessary patents, duplicate patents, invalid patents, etc. from the list of patents that need to be paid, or exchange all their own patents with the other party ’s patents. , For cross-licensing of patents, which can greatly reduce the cost of payment.

 

3. Principles of foreign-related patent litigation

 

(1) Principles applicable to China's Civil Procedure Law

 

People's courts can only apply China's Civil Procedure Law when hearing foreign-related civil cases. The specific requirements are: foreigners, stateless persons or foreign enterprises and organizations prosecuting and responding to the law in our country shall apply the Chinese Civil Procedure Law; all cases under the jurisdiction of the People ’s Court of China shall have jurisdiction; the judgment of the foreign court shall be subject to Only after China's courts have reviewed and acknowledged according to law, can they become legally effective in our country.

 

(2) Apply the principles of international treaties concluded or participated in by China

 

People's courts hearing foreign-related civil cases shall abide by international conventions concluded or participated in by our country. The provisions of international conventions that conflict with domestic law apply to the provisions of the convention, except for the clauses reserved for our country.

 

(3) The principle of judicial immunity

 

Civil proceedings against foreigners, foreign organizations and international organizations enjoying diplomatic privileges and immunities shall be handled in accordance with the international conventions concluded or participated in by China and the relevant laws of China. Civil judicial immunity is a kind of limited immunity, that is, the person who enjoys judicial immunity has waived judicial immunity from the competent authority of his country, or the person who enjoys judicial immunity involves litigation due to private affairs, or the person who enjoys judicial immunity Those who have filed a counterclaim in the country of residence shall not enjoy judicial immunity.

 

(4) The principle of entrusting Chinese lawyers to act as agents

 

Foreigners, stateless persons or foreign enterprises and organizations are required to sue and respond to litigation in China. If a lawyer is required to represent the litigation, they can only entrust a Chinese lawyer to represent the suit. Foreign lawyers cannot participate in the suit as a lawyer; Officials, who are entrusted by their citizens, can act as agents in the name of individuals (not part of official duties), but do not enjoy judicial immunity in litigation; foreign embassies and consulates in China can authorize officials of the embassy as diplomatic representatives The identity of its own party is to hire a litigation agent in China.

 

Foreigners, stateless persons or foreign enterprises and organizations that do not have a domicile in our country entrust Chinese lawyers or others to represent the litigation, and the power of attorney sent or entrusted from outside the territory of the People ’s Republic of China shall be certified by the notary office of the host country. It is valid only if it is certified by the Embassy or Consulate of the People ’s Republic of China in that country, or the certification procedures stipulated in the relevant treaties concluded between the People ’s Republic of China and the host country.

 

The power of attorney sent by people from Hong Kong, Macao, and Taiwan to the Mainland shall be handled in accordance with the Notice of the Ministry of Justice on the Issue of Certification Measures for Compatriots from Hong Kong and Macao to Return to the Mainland and their Supplementary Notice. The power of attorney sent by a Chinese citizen residing in a foreign country to the People's Court from outside our country must be certified by the Chinese embassy or consulate in that country. If there is no embassy or consulate, the local overseas Chinese organization shall prove it.

 

(5) Use the principles of language and writing in China

 

The people ’s courts shall hear the foreign-related civil cases in the language and script commonly used in our country. If the parties request translation, they may provide it at the expense of the parties.