China: 平衡车专利侵权纠纷,延及专利不侵权之诉(专利纠纷案件)

Last Updated: 2 May 2018
Article by HFG Law Firm

2018 年 3 月 6 日,浙江省高级人民法院开庭审 理了关于平衡车企业的确认不侵犯专利权之诉,以及申请海关知识产权保护措施损害赔偿责任纠纷一案。前述两个案件均为二审案件。

上述审理是基于以下事实:浙江省金华市中级人民法院作出判决(即一审),判定上诉人(原审被告)杭州骑客智能科技有限公司(中国平衡车生产商)因申请海关扣押行为错误,而导致被上诉人(原审原告)浙江波速尔运动器械有限公司(中国平衡车生产商)产生了一定的经济损失,因此法院判决上诉人杭州骑客智能科技有限公司向被上诉人浙江波速尔运动器械有限公司赔偿一定金额的经济损失。

涉案的两家企业是曾经进行专利授权许可的双方,在专利授权许可期满之后,两家企业终止了合作。根据相关诉讼中的证据显示,于 2015 年,上诉人杭州骑客智能科技有限公司将三件专利及两项商标权,以普通许可的方式,许可给被上诉人浙江波速尔运动器械有限公司使用。该授权许可合同的许可期限为 2015 年 9 月 15 日至 2016 年 9 月 15 日。

2016 年 10 月 31 日,上诉人杭州骑客智能科技 有限公司向被上诉人浙江波速尔运动器械有限公司发出《终止合同及停止侵权通知书》,通知授权许可 已终止。

2016 年 8 月 3 日,上诉人杭州骑客智能科技有 限公司以被上诉人浙江波速尔运动器械有限公司侵 犯"电动平衡扭扭车"的其他项外观设计专利和实用 新型专利为由,向浙江省宁波海关申请扣留浙江波速 尔运动器械有限公司向美国出口的 5000 余辆平衡车。上述出口货物是美国锐哲有限公司(美国平衡车生产 和销售商)委托被上诉人浙江波速尔运动器械有限公 司生产的平衡车。

在出口货物被扣押之后,被上诉人浙江波速尔运动器械有限公司交纳反担保金后解除了扣留措施。

上诉人杭州骑客智能科技有限公司在申请上述 海关扣押货物后,在法定的 3 个月期限内,并未依照法律规定向法院提起专利侵权诉讼。

为了减少上述海关扣押事件在行业内造成的不 良影响,以及消除产品是否构成侵权的不确定状态,被上诉人浙江波速尔运动器械有限公司向浙江省金 华市中级人民法院提起民事诉讼(一审诉讼),请求 法院判令上述被扣押的平衡车,不侵害上诉人杭州骑 客智能科技有限公司专利权的专利权,即不侵权之诉,以及要求上诉人赔偿相应的经济损失。一审法院浙江 省金华市中级人民法院在审理后,作出了不利于杭州 骑客智能科技有限公司的判决,即判定江波速尔运动 器械有限公司的产品并不构成专利侵权,以及杭州骑客智能科技有限公司向江波速尔运动器械有限公司 赔偿经济损失。

在该二审诉讼中,上诉人杭州骑客智能科技有限 公司辩称,在向海关申请扣押之前,上诉人和海关均 无法准确做出涉案产品是否侵权专利权的判断。所以,它向海关申请扣押产品符合相关规定。另外,若该扣 押申请的行为发生错误,应当由海关所在的宁波法院 管辖,而不应由金华中院作出判决。

目前,上述二审结果暂未公布,笔者将继续追踪 该案件。

HFG 视角——前专利审查员评论】

随着近几年平衡车在中国的流行,相关生产和销售企业的数量快速增长。据统计,杭州骑客智能科技有限公司以及相关分公司在平衡车领域申请了 200 余件专利,已经获得 151 项专利权。可以看出,该公司拥有大

量专利储备。

为了扩大市场份额,杭州骑客智能科技有限公司积极利用所持有的专利作为工具,向行业内其他企业发起 多起专利侵权诉讼,涉案企业达近百家。通过上述专利诉讼,杭州骑客智能科技有限公司打击了部分企业,同时也获得了相应的赔偿。

在杭州骑客智能科技有限公司的专利侵权诉讼战役中,一些企业也采取了相应的反击措施。一些企业在确认自己的产品没有侵犯他人的专利权后,向杭州骑客智能科技有限公司提出了不侵权之诉、损害名誉权以及经济损失等诉讼。本案就是一个很好的例证。

在上述案件中,一审法院作出了涉案产品没有侵权,在申请海关扣留的企业没有进行后续侵权起诉的情况下,其应当赔偿由此给被扣产品的企业带来的经济损失。

由此可见,本案件同时也是防止专利权人滥用权利的一个典型案例。在没有充分证据和把握的情形下,不可随意向海关申请扣留其他企业的产品。同时,建议专利权人和其专利律师均应当充分分析涉案专利和产品的 情况下,理性启用侵权相关行动,共同营造市场的公平竞争环境。

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