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Evidence Acquisition for Calculating the Losses of the Patentee in Patent Litigation
Time: 2016-05-03
Evidence Acquisition for Calculating the Losses
of the Patentee in Patent Litigation

Details about the case:

Jiangmen GarBath Co., Ltd found out that many counterfeits imitating seven sets of their new launch products were sold not only on the major online selling channels, such as Tmall, Taobao and JD, but also by another company in Jiangmen City. There were ten patents involved in the products and one of them had won the first prize in the corporation group of the first “WUYI Cup” Industrial Innovation Design Competition. The new products had favorable outlooks and competitive industrial features. They had suckers and drill-free installation functions. Therefore, these products had earned high popularity among the consumers in a short time and were sold very well.

Many online sellers saw the huge profits in the products and became imitating. In no time, a large quantity of counterfeits had sprung up in the market and what was worse, they were sold well, which made huge losses to GarBath.

Afterwards, GarBath entrusted Jiaquan IP Law Firm with the patent enforcement. Jiaquan found out that there were two types of infringers who were selling the infringing products. One was the online sellers and the other was a company in Jiangmen City. After further investigation, Jiaquan learned that it was a mould company in Taizhou who manufactured the counterfeits. On the other hand, Jiaquan made patent searches and surveys about the ten patents concerned and affirmed that all of them were of patentability. Therefore, Jiaquan concluded that the success rate of the litigation would be high.

Subsequently, Jiaquan perpetuated the evidences about the infringement of the online sellers, the company in Jiangmen and the manufacturer in Taizhou respectively. Then Jiaquan, on behalf of GarBath, filed law suits before Jiangmen Intermediate People’s Court and Taizhou Intermediate People’s Court according to the different venues of the infringers and requested that the infringers should stop infringement and pay for the loss of GarBath. Jiaquan properly perpetuated the evidence for calculating the profits the defendants gained through the infringement with the witness of the notary authority. Eventually, the defendants realized their disadvantaged position and expected to reach reconciliation with GarBath. After many times of negotiations, finally, the defendants agreed to make a compensation of RMB460,000 (about USD73,600) and promised that they would never produce or sell the infringing products again.

Legal grounds:

The Patent Law of the People's Republic of China

Article 65     The amount of compensation for patent right infringement shall be determined according to the actual losses of the patentee caused by the infringement. If the actual losses cannot be easily determined, the compensation amount may be determined according to the benefit acquired by the infringer through the infringement. If the losses of the patentee or the benefit of the infringer cannot be easily determined, the compensation amount may be determined reasonably by referring to the times of the royalties of that patent. The amount of compensation shall include the reasonable expenditures paid by the patentee for preventing the infringement act.


Jieyou LAN, a registered lawyer of Jiaquan IP Law Firm: In this case, the plaintiff was in the driver’s seat during the whole procedure, so that he could gain a relatively satisfactory result. Jiaquan collected the evidence with the witness of the notary authority, which made the evidence irrefutable and put the plaintiff in an advantaged position. On the other hand, for the infringers who sold the infringing products by online channels, Jiaquan traced their sales volumes and recorded the profits they gained regularly for calculating the compensation amount. At the same time, Jiaquan requested the court to freeze the assets of RMB500,000 (about USD80,000) of the infringers. Although the defendants tried to invalidate the patents concerned, they failed. In conclusion, it is the professional evidence perpetuations that made this success.

From Jiangmen Daily

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