The legitimate source is one of the most commonly used defenses of non-infringement. It is stipulated in Article 70 of the Patent Law "If the product is used, offered for sale, or sold for the purpose of production and business, if it is not known to be a patent infringing product manufactured and sold without the permission of the patentee, and if the legitimate source of the product can be proved, such shall not be liable for compensation."
According to the judicial interpretation of the Supreme People's Court (SPC), "Be not known" refers to the fact that "Be not known and should not be known". The legitimate source mentioned in this article means that the products are obtained through normal commercial methods such as legitimate sales channels and usual sales contracts. For legitimate sources, users, offered sellers or sellers should provide relevant evidence that conforms to trading habits. "
The intention of the legitimate source defense
Yuandesheng Plastic Electronics (Shenzhen) Co., Ltd. v. Hubei Jingying Shenghua Information Technology Co., Ltd. for infringement of a utility model patents, (2020) SPC-IP No. 728
Legitimate source defense is to encourage chasing the source of the infringement. Particularly, the intention of the legitimate source defense is to start from the principle of fairness, on the one hand, to allow sellers to be exempt from liability for compensation without fault; on the other hand, the more important purpose is to urge sellers of infringing products to improve the management of purchase channels, disclose upstream suppliers to the patentee in the litigation, so that the patentee can claim responsibility from the upstream suppliers step by step, and finally find and crack down the production source of infringing products. It can fundamentally eliminate the infringement, and protect the interests of the patentee, and encourage innovation, thereby promoting the development and progress of the entire society.
In the event that the defendant participated in manufacturing the accused infringing products and then selling them, he has no right to claim the legitimate source defense.
Mel Avgarin v. Henan Xinbairui Trading Co., Ltd. for infringement of an invention patent right, (2020) SPC-IP No. 299
The defendant not only sold the alleged infringing products through the online trading platform, but also claimed that he was the manufacturer of the alleged infringing product, and the evidence in the case could not prove that he did not participate in the production and manufacture. In the case that the defendant participated in manufacturing and selling the alleged infringing product, the claim of legitimate source defense is unfounded in the law.
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