[Summary of the trial]
In civil litigation, the procedural rights of all parties shall be protected in accordance with law. In this case, the main reason for the defendant's appeal asserted that the trial court was unlawful was that it attended the trial on time, but the plaintiff failed to appear in court on time, and the defendant waited for a period of time for the plaintiff to appear in court before the trial. In this regard, the court's practice of holding a trial after all parties have appeared in court is not improper, nor has it caused substantial damage to the substantive rights and litigation rights of all parties, and if the defendant has any objection to this, it should have made it clear in the original trial procedure, so its claim that the original trial of this case should be handled as a withdrawal of the lawsuit in the second-instance trial procedure lacks factual basis, so its appeal claim that the trial procedure of the original trial court is illegal is insufficient and should not be supported.
Supreme People's Court of the People's Republic
Civil rulings
(2022) Supreme Law Zhi Min Zhong No. 851
Appellant (defendant in the original trial): Longxuan Piano Store, Lanshan District, Linyi City. Business place: Linyi City, Shandong Province, Lanshan District, Yizhou Road and Jiefang Road intersection to the south of 50 meters east of the road.
Operator: Wu Shaohu, male, born on December 19, 1987, Han nationality, living in Linshu County, Shandong Province.
Entrusted litigation agent: Wang Zhiqiang, lawyer of Shandong Chengjie Law Firm.
Entrusted litigation agent: Sun Qingxia, lawyer of Shandong Chengjie Law Firm.
Appellee (plaintiff in the original trial): Feng Minde, male, born on October 30, 1950, Han nationality, living in Chongchuan District, Nantong City, Jiangsu Province.
Entrusted litigation agent: Ji Xiang, lawyer of Jiangsu Zilang Law Firm. Defendant in the original trial: Xiaoming Lefu, Jinsha Town, Tongzhou District.
Business place: Nantong City, Jiangsu Province, Tongzhou District, Jinsha Town, Laotongdui Road, Beiyangqiao Hotel next door.
Operator: Xu Xiaoming.
The appellant, Longxuan Music Co., Ltd. (hereinafter referred to as Longxuan Music Co., Ltd.), Lanshan District, Linyi City, appealed to this court against the (2021) Su 05 Min Chu No. 526 Civil Judgment rendered on December 10, 2021 by the Intermediate People's Court of Suzhou Municipality, Jiangsu Province (hereinafter referred to as "Longxuan Music Store") against the appellee Feng Minde and the defendant Xiaoming Lefu (hereinafter referred to as Xiaoming Yuefu), Jinsha Town, Tongzhou District, Tongzhou District. After the case was filed on April 26, 2022, this court formed a collegial panel in accordance with the law, and questioned the parties on October 13, 2022. Wu Shaohu, the proprietor of the appellant Longxuan Music Company, and Sun Qingxia, the entrusted agent ad litem, and the appellee Feng Minde and the entrusted agent ad litem Ji Xiang attended the court to participate in the questioning. The defendant in the original trial, Xiaoming Lefu, was lawfully summoned by this court and did not appear in court to participate in the questioning. The case is now closed.
Longxuan Music Company's appeal request: to change the judgment or revoke the original judgment in accordance with the law, and remand for retrial. Facts and reasons: 1. The original trial court made an error in the comparison of infringement, and the alleged infringing product did not fall within the scope of protection of the patent in question. 2. The amount of compensation awarded by the original trial court was too high. 3. The trial procedure of the original trial court was unlawful, and Long Xuan Qin Company appeared in court on time to participate in the original trial trial, but Feng Minde did not appear in court, and Long Xuan Qin Company waited for more than three hours for Feng Minde to appear in court, and it should be handled as a withdrawal of the lawsuit in accordance with law. 4. The original judgment of the trial court was unenforceable for the destruction of the alleged infringing products and special molds in inventory.
Feng Minde argued that the original judgment found that the facts were clear and the law was correctly applied, and requested that Longxuan Music Company's appeal request be dismissed.
Xiaoming Lefu did not make a statement.
Feng Minde filed a lawsuit with the trial court, which accepted the case on March 12, 2021. Feng Minde sued and requested: 1. Longxuan Music Company to immediately stop manufacturing, selling, and promising to sell the "Paidi" that infringed the patent rights involved in the case; 2. Longxuan Music Company to destroy the inventory products and special molds for the production of infringing products; 3. Longxuan Music Company to compensate Feng Minde for economic losses and reasonable rights protection expenses of 500,000 yuan; 4. Longxuan Music Company to stop selling the infringing product "Paidi".
The court of first instance found the following facts: (1) the patent involved in the case The patent in question was an invention patent named "Paidi" applied by Feng Minde on May 8, 2013, and was authorized and announced on January 28, 2015, with the patent number 20131016××××.1, and the patentee was Feng Minde. The patent in question included 9 claims, and Feng Minde only asserted claim 1 to determine the scope of protection in this case. Claim 1 of the patent in question is: 1. a flute arrangement, comprising 8-30 sound pipes (1), each sound pipe (1) is stuffed with a flute plug (12), a sound pipe connecting edge (2) is arranged below the front part of the sound pipe (1), the connecting edge (2) of the 4 sound pipes (2) is connected with a mouthpiece, and the mouthpiece comprises an air flow channel (3) and a mouthpiece connecting edge (4). The sound pipe connecting edge (2) is provided with a plurality of conical open grooves (5) arranged side by side, and the mouthpiece connecting edge (4) is provided with a plurality of conical bolts (6) matching with the conical open groove (5). The front end edge of the upper surface of the sound pipe connecting edge (2) is provided with a shallow boss (7), the shallow boss (7) is flush with the lower edge of the air outlet of the mouthpiece, and the front end edge of the sound pipe (1) is higher than the shallow boss (7). The inner wall of the front end of the sound pipe (1) is provided with a contraction-type arc-shaped cone (11). The patent specification [0023] records:...... As shown in Figure 3, the front end of the sound pipe 1 is the sound pipe mouth 10, and the upper inner wall of the sound pipe mouth 10 is provided with a contraction-type arc cone 11, the resonance point is changed, the pipe body is fully resonated, the timbre is more plump and round, the air consumption is small, the harmonic effect is better when the ensemble is played, the air flow can resonate better when entering the sound pipe, the air consumption is small when blowing, can be easily blown, is suitable for children, adults, and is suitable for a wide range of people.
(2) The alleged infringement situation Longxuan Piano Store is a self-employed industrial and commercial household, with a registration date of April 28, 2015, and its business scope is retail: musical instruments. Xiaoming Yuefu is a self-employed industrial and commercial household, with a registration date of January 8, 2013, and its business scope is musical instrument sales, commissioning, repair services, etc. On November 7, 2020, Longxuan Music Company applied to the Nantong Notary Office of Nantong City, Jiangsu Province (hereinafter referred to as the Nantong Notary Office) for notarization of evidence preservation. The (2020) Sutong Nantong Zheng Zi No. 7329 notarial certificate issued by the Nantong Notary Office for this purpose records that Feng Minde purchased one "18-tube black pan flute" and one "16-tube white pan flute" at the store of "5 Longxuan Qin Company, Lanshan District, Linyi City" on the Alibaba platform of Longxuan Music Company on November 7, 2020, and paid a total of 94 yuan, of which the price of "18 black pan flutes" was 45 yuan, the price of "16 white pan flutes" was 40 yuan, and the shipping fee was 9 yuan. Later, on November 9, 2020, the notary public signed on behalf of him, opened the package and took pictures, and sealed it for Feng Minde to take back for safekeeping. The product interface on the day of purchase shows "800+ transactions within 30 days, 9 reviews". On January 6, 2021, Longxuan Music Company applied to the Nantong Tongzhou Notary Office for notarization of evidence preservation. The (2021) Sutong Tongzhou Zhengzi No. 14 notarial certificate issued by the Tongzhou Notary Office for this purpose records the content: Feng Minde purchased one "18-tube white pan flute" and one "16 white pan flute" at the Xiaoming Lefu store on January 6, 2021, and paid a total of 150 yuan, of which the price of "18 tubes of white pan flute" is 80 yuan, and the price of "16 tubes of white pan flute" is 70 yuan. The notary took a photograph and sealed it and handed it over to Feng Minde to take back for safekeeping. Feng Minde submitted the four pan flutes purchased by notarization at the original trial. Longxuan Qin Co., Ltd. confirmed that the 2 pan flutes corresponding to the (2020) Sutong Nantong Zheng Zi No. 7329 notarial certificate were produced and sold by Longxuan Qin Co., Ltd., and the 2 pan flutes corresponding to the (2021) Sutong Tongzhou Zheng Zi No. 14 notarial certificate were the products of Longxuan Qin Co., Ltd., but it was not sure where Xiaoming Yuefu was bought. The two parties confirmed that the 18-tube black pan flute was used as the alleged infringing product in this case for comparison, and the comparison opinions of the other three products were compared with the comparison opinions of the 18-tube black pan flute.
(3) Comparison of infringement SituationThe patent claim 1 in question comprises four technical features, namely: technical feature 1: a flute arrangement, comprising 8-30 sound pipes (1), each sound pipe (1) is stuffed with a flute plug (12), a sound pipe connecting edge (2) is arranged below the front part of the sound pipe (1), the sound pipe connecting edge (2) is connected with a mouthpiece, and the mouthpiece comprises an air flow channel (3) and a mouthpiece connecting edge (4). Technical feature 2: the sound pipe connecting edge (2) is provided with a plurality of conical open grooves (5) arranged side by side, and the mouthpiece connecting edge (4) is provided with a plurality of conical bolts 6 (6) matching with the conical open groove (5). Technical feature 3: the front end edge of the upper surface of the sound pipe connecting edge (2) is provided with a shallow boss (7), the shallow boss (7) is flush with the lower edge of the air outlet of the mouthpiece, and the front edge of the sound pipe (1) is higher than the shallow boss (7). Technical feature 4: the upper inner wall of the front end of the sound pipe (1) is provided with a retractable arc-shaped cone (11). After comparison, Feng Minde believed that the alleged infringing product had the above four technical features, which fell within the protection scope of the patent in question and constituted infringement. Longxuan Music Company argued that the alleged infringing product had the technical features 1, 2 and 3 of the patent involved in the case, but did not have the technical feature 4, and the accused product did not have a shrinking arc cone. In order to further illustrate the technical features, Feng Minde sawed the sound pipe of the accused product and measured it with a vernier caliper, and measured the thickness of the front end of the sound pipe of 3.19 mm, and believed that a small amount of shrinking arc-shaped cone was clearly visible to the naked eye on the inner wall of the front end. In this regard, Longxuan Piano Company added that the difference between the thickness of the front end and the thin back end of the sound pipe is due to the material properties and production process of the product, which is produced by injection molding as a plastic product, and the plastic particles need to be heated into a liquid during the production process, and then the liquid is injected into the mold by high pressure for pressurization, pressure holding molding and then cooling, and then the mold is withdrawn from the tube. This process results in a thick wall at the front end and a thin wall at the back.
(4) Prior art defense: Longxuan Music Company submitted the 200820002178 applied by Feng Minde on January 16, 2008. Utility model patent No. X asserts the prior art defense, arguing that the technical solution of the accused infringing product is not substantially different from the technical features of claims 1 to 3 of the above-mentioned patent. The application number is 200820002178. X. The utility model patent named "easy-to-learn and easy-to-play pan flute" was applied for by Feng Minde on January 16, 2008 and authorized and announced on November 5, 2008. The patent claims record: 1. This easy-to-learn and easy-to-blow flute is composed of a sound pipe, a blowpipe, and a flute bladder, and is characterized in that: 7-19 rows of sound pipes (1) made of non-toxic hard plastic or metal, the sound pipe end is beveled (2), the sound pipe end is made with a slope-shaped bump (3), the upper end of the bump is flat with the bevel (2) of the sound pipe end, the back of the upper port of the sound pipe is made with a dovetail-shaped bump (9) for the blowpipe (4) to insert, the sound pipe has a flute bile (8), the flute bile is made of silicone and other materials, and the air outlet is at the sound pipe end 1/ 2-1/3 position. 2. the easy-to-learn and easy-to-blow flute according to claim 1, it is characterized in that: the blowpipe is flattened, the blowpipe is made with a spacer (6), the lower end of the blowpipe is the air outlet (5), there are fixing pieces (7) on both sides of the blowpipe, and the angle formed by the blowpipe plane and the sound pipe end plane is in a straight line or slightly leans forward. 3. The row flute that is easy to learn and easy to blow according to claim 1, is characterized in that: the upper end of the bump occupies the sound pipe end 1/4-1/2.
(5) In other circumstances, Feng Minde claimed that the alleged infringing products showed that 16,000 pieces had been spelled on Pinduoduo, but Longxuan Music Company did not recognize the number, arguing that the data was untrue and inconsistent with the actual sales volume. Feng Minde asserted that the expenses for rights protection in this case included 40,000 yuan in lawyer fees, 4,040 yuan in notary fees, and 60.8 yuan in printing fees, and provided corresponding bills to support it.
The court of first instance held that the alleged infringing product contained the same or equivalent technical features as all the technical features of the patent in question and fell within the protection scope of the patent claims in question, and all the technical features of the accused infringing product that fell within the scope of protection of the patent were not the same as the corresponding technical features in the prior art solution, and there was no evidence to show that the above distinction was common knowledge in the technical field to which it belonged, so the prior art defense asserted by Longxuan Music Company could not be established, and the accused infringing product constituted an infringing product. Longxuan Music Co., Ltd., without the permission of the right holder, carried out the act of manufacturing and selling the allegedly infringing products, and Xiaoming Lefu sold the allegedly infringing products, both of which constituted an infringement of the patent right involved in the case, and should bear the civil liability to stop the infringement and compensate for the losses. Feng Minde did not assert that his claim for compensation to Xiaoming Yuefu was his right to dispose of his own rights. Feng Minde's claim for the destruction of the infringing products and special molds in the inventory is based on the law, so it is supported. As to the amount of compensation, since the available evidence could not prove the actual losses suffered by Feng Minde as a result of the infringement or the actual profits of Longxuan Music Company as a result of the infringement, and Feng Minde clearly asserted that statutory damages should be applied in this case, the amount of compensation in this case was determined to be 150,000 yuan after taking into account factors such as the type and time of acquisition of the patent right in question, the nature and circumstances of the infringement, and the price of the alleged infringing product, as well as the necessary and reasonable expenses incurred by Feng Minde in protecting his rights in this case.
The court of first instance ruled that: (1) Longxuan Music Store in Lanshan District, Linyi City, and Xiaoming Lefu in Jinsha Town, Tongzhou District, should immediately cease the infringement of the invention patent rights involved in the case, and Longxuan Music Store in Lanshan District, Linyi City should immediately destroy the inventory of the allegedly infringing products and special molds; (2) Longxuan Music Store in Lanshan District, Linyi City, should compensate Feng Minde for economic losses and reasonable rights protection expenses of 150,000 yuan within 10 days from the date of the judgment taking effect; and (3) reject Feng Minde's other litigation claims. If the obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt for the period of delayed performance shall be doubled in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China (amended in 2017). The first-instance case acceptance fee of 8,800 yuan is borne by Longxuan Music Company.
The facts ascertained by the court of first instance are basically true, and this court affirms them.
During the second instance of this court, Feng Minde submitted the decision on the review of the request for invalidation No. 55547 (hereinafter referred to as Decision No. 55547) and a printout on the Internet to prove that the patent in question had been maintained and that the alleged infringement continued after the original judgment. Longxuan Music Company recognizes the authenticity of Decision No. 55547, but does not recognize the authenticity of the online printout, and does not recognize its purpose of proof. After review, this court found that Decision No. 55547 was true and valid, and that it was relevant to this case, so this court accepted it, and because the online printout could not confirm its authenticity, this court did not accept it.
The court also ascertained that on April 19, 2022, the State Intellectual Property Office made Decision No. 55547 to maintain the validity of the patent in question. This fact is supported by decision No. 55547 on record.
The court held that the patent involved in the case was a legal and valid patent right and should be protected in accordance with the law. Based on the parties' arguments and combined with the ascertained facts, the focus of the dispute in this case is: (1) whether the alleged infringing product falls within the scope of protection of the patent in question, (2) whether the legal liability decided by the original trial court is appropriate, and (3) whether the trial procedure of the original trial court is illegal.
(1) Whether the alleged infringing product falls within the scope of protection of the patent involved in the case
Paragraph 1 of Article 59 of the Patent Law of the People's Republic of China stipulates that "the scope of protection of a patent right for invention or utility model shall be subject to the content of its claims, and the description and drawings may be used to explain the content of the claims." Among them, "the scope of protection of a patent for invention or utility model shall be subject to the content of its claims, and the description and drawings may be used to explain the content of the claims", which means that the scope of protection of the patent right shall be subject to the scope determined by all the technical features recorded in the claims, and also includes the scope determined by features equivalent to the technical features. Equivalent technical features refer to features that achieve basically the same functions and achieve essentially the same effects by basically the same means as the recorded technical features, and can be associated with by a person skilled in the art without creative labor when the alleged infringement occurs. Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases stipulates that: "When determining whether the accused technical solution falls within the scope of protection of the patent right, the people's court shall examine all the technical features recorded in the claims asserted by the right holder." If the accused technical solution contains technical features that are identical or equivalent to all the technical features recorded in the claims, the people's court shall determine that it falls within the scope of protection of the patent right; In this case, the alleged infringing product was compared with the four technical features recorded in claim 1 of the patent in question, and the dispute between the parties mainly focused on whether the accused product had the technical features in claim 1 of the patent in question, which was "provided with a retractable arc-shaped cone (11) on the inner wall of the front end of the sound pipe (1)". First of all, there is a retractable arc-shaped cone on the inner wall of the front end of the sound pipe of the accused product. Judging from the inspection of the original trial, after dismantling the alleged infringing product, it can be seen that the upper section of the inner wall of the front end of the sound pipe forms a convex shape, which is wide at the top and narrow at the bottom, showing a shrinking structure from top to bottom, which is also a contraction arc cone structure, that is, the "contraction arc cone" in the patent in question, and the "contraction arc cone" is also arranged on the inner wall of the front end of the sound pipe. Therefore, the accused product has the technical feature of claim 1 of the patent in question: "a retractable arc-shaped cone (11) is arranged on the inner wall of the front end of the sound pipe (1)". Secondly, the alleged infringing product was provided with a "shrinking arc-shaped cone" on the inner wall of the front end of each sound pipe, indicating that the product characteristics were deliberately obtained by controlling the injection mold and the injection molding process, and were not the defects in the injection molding process or the inevitable product of the injection molding process. In addition, the trial court did not compare the alleged infringing product with the patent specification, its drawings and embodiments. Therefore, it was not improper for the court of first instance to hold that the alleged infringing product contained all the technical features of claim 1 of the patent in question, fell within the protection scope of the patent in question and constituted infringement. Longxuan Music Company's appeal claim that the allegedly infringing products did not fall within the scope of protection of the patent involved in the case was not based on sufficient basis and was not supported by this court.
(2) Whether the legal responsibility of the original trial court's judgment is appropriate
Article 65 of the Patent Law of the People's Republic of China stipulates that: "The amount of compensation for patent infringement shall be determined according to the actual losses suffered by the right holder as a result of the infringement; Where it is difficult to determine the losses of the right holder or the benefits obtained by the infringer, it shall be reasonably determined with reference to the multiple of the patent royalty. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement. Where it is difficult to determine the losses of the right holder, the benefits obtained by the infringer, and the patent license fees, the people's court may determine the compensation of not less than 10,000 yuan but not more than 1,000,000 yuan on the basis of factors such as the type of patent right, the nature and circumstances of the infringement, and so on. "In this case, Longxuan Music Company carried out the act of manufacturing and selling the allegedly infringing products without the permission of the right holder, and the sale of the allegedly infringing products by Xiaoming Lefu constituted an infringement of the patent rights involved in the case, and should bear the civil liability of stopping the infringement, destroying the infringing products and related molds, and compensating for losses. Feng Minde did not assert that Xiaoming Lefu's liability was his right to dispose of his own rights. The available evidence does not prove that Longxuan Music Company has ceased the infringing acts, and the court of first instance ruled that the destruction of the infringing products and special molds by Longxuan Music Company was not improper, and Longxuan Music Company's appeal claim that the original judgment to destroy the allegedly infringing products and special molds in stock cannot be sustained, and this court does not support it. With regard to the liability for compensation, since the available evidence could not prove the actual losses suffered by Feng Minde as a result of the infringement or the actual profits of Longxuan Music Company as a result of the infringement, and at the same time, Feng Minde also clearly asserted that statutory damages should be applied in this case, so the court of first instance comprehensively considered the type and time of acquisition of the patent in question, the specific circumstances of the infringement, the price of the alleged infringing products and other factors, and considered the necessary and reasonable expenses incurred by Feng Minde in defending his rights in this case, and determined that the amount of compensation in this case was not improper. Longxuan Music Company's appeal claim that the original trial court's judgment on the liability for compensation and destruction was improper cannot be sustained, and this court does not support it.
(3) Whether the trial procedures of the original trial court were unlawful
Article 8 of the Civil Procedure Law of the People's Republic of China stipulates that "parties to civil litigation have equal procedural rights. People's courts hearing civil cases shall safeguard and facilitate the parties' exercise of procedural rights, and treat all parties equally in the application of law. Article 10 stipulates: "The people's courts hearing civil cases shall, in accordance with the provisions of law, implement the systems of collegiality, recusal, open trial, and final adjudication of two instances. "The procedural rights of all parties shall be protected in accordance with law in civil litigation. In this case, the main reason for the appeal of Longxuan Music Company asserted that the trial procedure of the original trial court was illegal because it attended the trial on time, but Feng Minde failed to appear in court on time, and Long Xuan Music Company waited for a period of time for Feng Minde to appear in court before the trial. In this regard, this court held that the trial court's practice of holding a trial after all parties had appeared in court was not improper, nor did it cause substantial damage to the substantive rights and litigation rights of the parties, and that Longxuan Music Company should have clearly raised it in the original trial procedure if it had any objection to this, so its claim that the original trial of this case should be handled as a withdrawal of the lawsuit lacked factual basis in the second-instance trial procedure, so its appeal claim that the trial procedure of the original trial court was illegal was not based on sufficient ground, and this court did not support it.
In summary, Longxuan Music Company's appeal request cannot be sustained and should be dismissed. The original judgment found that the facts were clear and the application of law was basically correct, and should be upheld. In accordance with the provisions of Article 177, Paragraph 1, Item 1 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The second-instance case acceptance fee of 8,800 yuan shall be borne by Longxuan Music Store in Lanshan District, Linyi City.
This judgment is final.
Presiding Judge Liu Xiaojun
Adjudicator: Ho Ching-ling
Adjudicator Guo Xin
March 9, 2023
Assistant Judge Tong Xiyao
Clerk: Liu Zhiyan
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