As the aggressor of the lawsuit, although the plaintiff occupies the advantage and initiative of the lawsuit, it is also easy to expose its own thinking and views of the lawsuit. As a defendant, being sued does not mean losing the case. Facing the prosecution of the plaintiff, the key for the defendant to win the lawsuit lies in whether it is carefully prepared.

First, to clarify the basic issues of the case

1. Whether the appellate court has jurisdiction over the case

Although the law has made clear provisions on the jurisdiction of various cases, in the litigation judicial practice, the plaintiff may circumvent and misinterpret the law for its own interests or purposes, and there have even been cases where the plaintiff has secretly altered the jurisdiction clauses in the contract to defraud the court to file a case. Whether the appraised court chosen by the plaintiff has jurisdiction over the case can be judged from the fact that the plaintiff takes the contract dispute as an infringement dispute, or from the law that the plaintiff has evaded the provisions of the governing law or changed the legal relationship. Also do not neglect to check whether there is any difference between the governing terms of the contract in your possession and the copy provided by the other party.

In addition, from the perspective of obtaining preparation time for us to respond to the lawsuit and prompting the plaintiff to take the initiative to settle with us, it is also relatively common to raise jurisdictional objections to the court in practice, depending on the needs of the case.

2. Whether the plaintiff sued beyond the statute of limitations

If the rights claimed by the plaintiff exceed the limitation period, the defendant can prevent the plaintiff from claiming the right to claim by asserting the limitation of action defense.

3. Whether the plaintiff or defendant is a competent subject of the case

Although whether the plaintiff and the accused are eligible subjects of the case can only be determined after an entity trial, if the defendant can prove that the plaintiff has mislisted the subject of the lawsuit, abused the lawsuit, or the defendant has no connection with the facts of the dispute, and has no legal rights and obligations, the court is likely to require the plaintiff to change the litigant or withdraw the lawsuit after review.

4. Whether the plaintiff has critical evidence

In addition to judging what kind of evidence it has from the facts originally told, the defendant should also enumerate and analyze the possible evidence provided by the plaintiff one by one according to the legitimacy, authenticity and relevance of the evidence, as a reference for formulating a response strategy.

5. Whether the plaintiff has a special social or other specific background to Sue

The defendant needs to consider the new laws, regulations, rules and social background in a specific period or region, and consider the social effects and risks that may be caused by the response strategy in combination with the specific background.

Second, the plaintiff's lawsuit defense and response strategy design

The mode of defense and response based on the plaintiff's complaint is often lack of scientific and pertinence. The defendant should make an overall analysis and study of the case and then make a defense and response strategy design. The defendant shall make clear the plaintiff's political, economic, social status and other background; The specific circumstances of the alleged facts; The form, source, object of proof of the plaintiff's evidence and the degree of correlation with the alleged facts; The focus, difficulty and weakness of the plaintiff's lawsuit; The probability of the plaintiff realizing the lawsuit request and the expectation of success. Then, from the plaintiff's "mistakes" and "loopholes" to find a rebuttal point of view, from the jurisdiction, subject, procedure, evidence, law and other aspects of the comprehensive formulation of response strategy.

[Case Study: Defense Strategies of Defendants in Patent infringement Cases]

Nowadays, with the vigorous development of intellectual property rights in the country, various intellectual property infringement incidents occur frequently. As a kind of intellectual property rights, patent rights are increasingly paid attention to by the right holders, and they are used as market competition weapons to fight against competitors. At present, in patent infringement litigation, the defendant can use the following defenses according to the patent Law, the implementation rules of the Patent Law and relevant judicial interpretations:

1. There is no infringement defense for acts performed outside the protection period

The exploitation of a patent before the patent application is not authorized, after the patent is declared invalid, or after the patent is abandoned by the patentee or the patent expires, does not constitute an infringement of the patent right.
 
2. Limitation of action defense

Patent infringement of patent rights is also a civil tort, the statutory statute of limitations is two years, if the infringement occurred two years after the prosecution, the defendant can claim the statute of limitations defense. In the case of a continuous infringement, if the act began before the two-year statute of limitations and continued until the date of action or within the two-year statute of limitations, it would still constitute an infringement, but only the act committed during the two-year statute of limitations would be counted in calculating the amount of damages.
 
3. No infringement defense that does not fall within the scope of patent protection

For the invention and utility model patents, the defendant's implementation does not realize the technical scheme required to be protected by the patent in the same or equivalent way, and for the design, the product directed by the defendant's implementation is not the same or similar to the product described in the design patent, and the design is not the same or similar. It can be determined that the implementation does not fall within the scope of patent protection.

4. Prior art non-infringement defense

In a patent infringement dispute, if the accused infringer has evidence to prove that the technology it has implemented belongs to the prior art before the date of application of the patent involved, it is not enough to infringe the patent right.

5. No infringement defense for non-production and operation purposes

Article 11 of the Patent Law stipulates that only the act of execution for the purpose of production and operation constitutes an infringement. On the contrary, if it can be proved that the act of execution is not for the purpose of production and operation, it can be used as a defense to claim non-infringement.

6. Defense not considered as infringement

Article 69 of the Patent Law provides five kinds of situations that are not considered as patent infringement, namely, the principle of exhaustion of rights, the principle of preemptive right, temporary transit, the purpose of scientific experiments, and the need for administrative approval of medicine, and these five kinds of behaviors are legal non-infringement defenses.

7. Legal source disclaimer

In order to prevent uninformed sellers from assuming responsibilities that do not belong to them, Article 70 of the Patent Law provides that anyone who uses, promises to sell or sells a patent infringing product for production and business purposes without knowing that it is manufactured and sold without the permission of the patentee and can prove that the legitimate source of the product shall not be liable for compensation.