Frequently suing small traders, is Wei Peng "defending his rights" or "making money"?

Wei Peng's patented scraper (left), potato scrub (right) sold by a small trader

Recently, Wei Peng, a Native of Shandong Province, in his 60s, came to Hohhot with his "wire scraper" design patents and sued more than 70 small traders in court for infringing intellectual property rights.

Prior to this, he had carried out the same rights protection acts in many parts of the country, and all of them won the lawsuit and compensated different amounts. Interestingly, this so-called "scraper" is a "potato scraper" that we northerners must use almost every home and often use!

The little shop came to a foreigner

Lao Wu's hardware souvenir shop is located near Hohhot Railway Station. Over the years, relying on small business, honest hospitality, although not making a fortune, but also to solve the family's food and clothing.

In December 2020, a man with a foreign accent entered his shop and asked for a "potato scrub" by name. Lao Wu's daughter-in-law took out a long strip from the shelf and handed it to the man, and said casually: "10 pieces." "The man took the goods and looked at them carefully, and asked the old Wu daughter-in-law to open a receipt." Buy a 10 yuan potato scrub and still have to issue a receipt? "Although the old Wu daughter-in-law had doubts, she still clearly wrote the price and the name of the item on the receipt and handed it to the other party." Boss, give me your business card. "Subsequently, the man made such a request." Maybe customers want to buy more from my house in the future? For this kind of request, which is generally only made by bulk purchases or quasi-repeat customers, the old Wu daughter-in-law even gave the other party a business card with a mood of expectation. But she did not expect that the series of processes of entering the store to shop, issue receipts, and ask for business cards were all photographed by another man standing a few meters behind the man with a mobile phone.

In September 2021, Lao Wu suddenly received a call from the case filing division of the Hohhot Intermediate People's Court, informing him that he had been prosecuted. The "crime" was a potato rub sold in his shop, infringing on another person's patent, which was an illegal act. After coming to the courthouse, Old Wu was taken aback. The person who prosecuted him was Wei Peng, a native of Shandong. In 2016, the man applied for a patent for the appearance of a potato scrub with a "drill-eye iron sheet in the middle, surrounded by a wooden frame and a handle", and obtained approval called "scraper". The potato scrubs sold in his shop are very similar in appearance to Wei Peng's patented "scrapers." The other party proposed 20,000 yuan in compensation to Lao Wu on the grounds of infringement of intellectual property rights. If Lao Wu is willing to accept mediation, he can only compensate 5,000 yuan. For this lawsuit, which was like falling from heaven and being unprepared, Lao Wu felt very wronged, he was a small trader who sold hardware and local products, how could he be related to the infringement of other people's intellectual property rights? Selling a potato rub is also to earn a few dollars, whether it is 5,000 compensation or 20,000, it is too outrageous! Although Lao Wu felt wronged and a hundred were not happy, the staff of the court told him that if he did not accept mediation, then he could only file a case and try it. What surprised Lao Wu even more was that this Wei Peng actually used the same way and the same reason to sue more than 70 small traders like him in Hohhot.

Is it a trap?

Lao Wu told reporters that around May 2020, a man from out of town came to his store to sell this potato scrub, claiming that it was cheap, easy to use, easy to sell, and only two yuan per potato scrub. In the face of the other party's enthusiastic sales, Lao Wu was in the spirit of trying it out, and bought twenty or thirty at a time, and the purchase price was only a few dozen yuan. Even if these potato wipes were sold out, he would earn two hundred yuan, but he did not expect that the potato wipes were not sold out, and he became a defendant. So he suspected that the people who came to sell potato scrapers were in the same group as the people who sued him, and that was a trap. In the interview, a number of indicted small traders described to reporters the same process as Lao Wu said. These small traders believe that this kind of potato scrub has existed since ancient times, and like kitchen knives and rolling pins, it is a daily necessity of every household, how can it become a patented product? Even patents, they were sold without their knowledge, for a meager profit, allowing them to compensate so much money that it was unacceptable in any case.

It has been successfully compensated in many parts of the country

The reporter found through the network search that in February 2016, Wei Peng applied for a design patent for "wire scraper" to the State Intellectual Property Office, which was approved in the same year. Since then, he has focused on litigation to safeguard the intellectual property rights of "wire scrapers" in many parts of the country. Most of the respondents are small traders, and the subject matter of the claim is basically more than 10,000 yuan.

In 2019, Wei Peng sued Jinan Huaiyin Zhao Yifan Department Store, claiming that the scrapers he sold infringed his design patents and claimed 30,000 yuan. At the end of 2020, the court ordered the department store to pay 10,000 yuan in damages. In 2019, in Zhengzhou City, Henan Province, it sued Dingxin Hotel Supplies Company in Zhongmu County, claiming 30,000 yuan, and the court ordered the defendant to compensate 10,000 yuan. In 2020, in Shanghai, the e-commerce company Liu Mouying, Suide County's Eryuan Egg Local Products Store and the platform company were sued in court, claiming 30,000 yuan. In April 2021, the Shanghai Intellectual Property Court ordered Liu Mouying to compensate the plaintiff 7,000 yuan and Suide County's Eryuan Egg Souvenir Shop 5,000 yuan. In 2020, in Hangzhou, Zhejiang Province, Wang Mougang was sued for selling infringing scrapers in a Taobao store, claiming 30,000 yuan, and the Hangzhou Intermediate People's Court sentenced Wang Mougang to 10,000 yuan in damages. The above-mentioned cases are only part of the relevant rights protection cases.

The most recent case was decided by the Intermediate People's Court of Xi'an City, Shaanxi Province, and the Shaanxi Provincial High People's Court, which is relatively representative. In March 2021, Wei Peng sued local trader Chen Moumou in Xi'an City, Shaanxi Province, demanding that the other party stop the infringement, compensate 15,000 yuan and bear the litigation costs on the grounds that the scraper he sold infringed his design patent right. After trial, the Xi'an Intermediate People's Court held that the product attached to the patent involved in the case was a household daily gadget with low visual identity, and it was more difficult for ordinary people to distinguish the appearance patent, and it was not appropriate to impose a heavier burden on the operator's duty of care when purchasing the goods involved in the case; the price of the products involved in the case was extremely low, the plaintiff did not provide evidence to prove that it suffered losses due to the defendant's infringement, and the defendant's profit from the sale of the infringing product was extremely small, although it was impossible to determine the benefits it had obtained due to the infringement, but it would not produce greater profits within the foreseeable range The scale of the defendant's business is not large, and the product involved in the case is only a commodity in the defendant's business scope. Therefore, the court determined that the amount of compensation for the defendant was 1,000 yuan as appropriate based on factors such as the type of the plaintiff's patent right, the nature and circumstances of the defendant's infringement, and the reasonable expenses paid by the plaintiff to investigate and stop the infringement. After the first-instance judgment, the plaintiff, Wei Peng, was not satisfied and appealed to the Shaanxi Provincial High People's Court. The court of second instance upheld the original judgment.

The reporter also found in the inquiry that in addition to obtaining the "scraper" design patent and frequently defending his rights through law, Wei Peng also applied for a design patent for a "vegetable wiper", which was approved in 2011. After obtaining the patent, Wei Peng sued a production enterprise for infringement in Jieyang City, Guangdong Province, claiming 150,000 yuan, but ultimately lost the lawsuit.

Are rights protection subject to no moral restrictions?

Registering a appearance patent for an unremarkable and long-standing daily necessity, and repeatedly defending his rights through litigation, and frequently winning lawsuits to obtain compensation, Wei Peng's move is to protect his rights or to make money? In this regard, the reporter contacted Wei Peng's lawyer in this lawsuit and hoped to have a dialogue with Wei Peng, but the other party politely refused the reporter's interview request. His lawyer said that it is inconvenient to disclose the contact information of the parties, and will not make any statement to the media before the court has held a hearing and there is no trial result.

In this regard, Yu Guangjun, a senior economic researcher at the Inner Mongolia Academy of Social Sciences, said that Wei Peng's behavior is in line with the law and is beyond reproach. Although the act of selling infringing goods by small traders is unknowing and the profits are very small, they are indeed at fault, and if they are wrong, they must be punished. In this link, the relevant competent departments also have lax supervision, which shows that there are still many irregularities and need to be regulated in our current social and economic activities. All along, everyone has been accustomed to such irregular or even illegal behavior, which is not conducive to the normal and benign development of the social and economic system. Wei Peng's rights protection behavior through litigation is conducive to promoting and standardizing the benign development of social economy, is the embodiment of social progress, and deserves to be affirmed. But from another level, Yu Guangjun laughed and said that he can patent this kind of daily necessities, and he can also make money through lawsuits, which shows how shrewd he is, "In the Hohhot dialect, this kind of person belongs to the 'thief hula', I will not deal with this kind of person!" ”

In this regard, Qin Guangli, a lawyer at Inner Mongolia Mengshengrui Law Firm, believes that Wei Peng's behavior cannot be evaluated from the principles of morality or law. Wei Peng is to protect his own rights and interests, and in general, interests should not become a moral obstacle to the protection of rights. Lawyer Qin put forward some bases for the protection of the rights of small traders from the current legal provisions of our country. Wei Peng's application date for a patent for appearance is February 19, 2016, and if a small trader or producer has already produced and sold a scraper earlier than February 19, 2016, he may, in accordance with Article 45 of the Patent Law of the People's Republic of China, "from the date on which the Patent Administration Department of the State Council announces the grant of the patent right, any unit or individual who believes that the grant of the patent right does not comply with the relevant provisions of this Law may request the Patent Administration Department under the State Council to declare the patent right invalid". Wei Peng's patent was not novel and applied to the patent department for invalidation. In addition, on the basis of Article 75 of the Patent Law, "the same product has been manufactured, the same method has been used, or the necessary preparations for manufacturing and use have been made before the date of patent application, and only within the original scope of manufacturing and use can be continued to be manufactured and used", and evidence of the sale of the scraper product is earlier than the date of the patent application, proving that the product has not infringed the patent right and does not bear the liability for infringement. For small traders who sell the product in a non-malicious manner, who do not know that it is a scraper manufactured and sold without the permission of the patentee, the parties concerned must issue sales data, documents, etc. that conform to the regional and industry trading habits to prove that they have fulfilled their reasonable duty of care, and according to Article 77 of the Patent Law, "If the patent infringing product is used, promised to sell or sold for the purpose of production and operation, and the patent infringing product is not known to have been manufactured and sold without the permission of the patentee, and can prove the legal origin of the product, it shall not be liable for compensation" provisions to exempt themselves from liability. Wen • Photo / Northern New Daily Zhengbei Network reporter Yang Jia