ZWILLING J.A. HENCKELS Sued SHANGHAI SIHE STAINLESS STEEL PRODUCT CO., LTD. for Infringing Its Patent Right for Design
2009-02-23
ZWILLING J.A. HENCKELS (the plaintiff) brought before Shanghai No. 1 Intermediate People's
Court a lawsuit against SHANGHAI SIHE STAINLESS STEEL PRODUCT CO., LTD. (the
defendant) and argued that Chinese State Intellectual Property Office had granted a patent right for
its design of hilt on April 20, 2005 (Patent No. ZL200430060876.2). One type of the defendant's
knives within the protection extent of its patent right constitutes patent infringement.
The defendant argued that:
1. The defendant has never made and sold the knife which was obtained from its showroom by the
plaintiff. The knife involved in the case is a gift from a foreign friend.
2. The knife involved in the case isn't within the protection extent of the plaintiff's patent right.
The court asserts the knife involved in the case within the protection extent of the plaintiff's patent
right. However, the relevant evidence merely proves that the knife was obtained rather than bought
from the defendant. In other words, there is no sufficient evidence proving the defendant made and
sold infringing goods. Therefore, the judgment passed against the plaintiff.
The plaintiff doesn't satisfy the judgment and lodged an appeal with Shanghai Higher People's
Court on the grounds that:
1. The notarial deed provided by the appellant (the plaintiff in the first instance) proves the knife
involved in the case was bought from the appellee (the defendant in the first instance).
Furthermore, the appellant also submitted the quotation and bank information to prove this fact.
The original judgment separates the chains of evidence.
2. The original judgment misallocates proof burden. The appellee shall assume the proof burden
for the fact that it was presented with the knife involved in the case.
3. The appellant has applied to the court of the first instance for requiring notary to give testimony
in the court so as to clarify the purchasing process. The court of the first instance refused the
application and deprived of its rights to adduce evidence.
In the second instance, the appellee submitted a copy of decision declaring the appellant's patent
right invalid made by the Patent Re-examination Board on July 11, 2008.
The court of the second instance holds that:
1. The appellant's patent for design has been declared invalid by the Patent Re-examination Board
on July 11, 2008.
2. The notarial deed merely proves that the knife involved in the case was obtained rather than
bought from the appellee. The handwritten quotation and the document of "Re:T/T Bank
information"cannot prove the appellee' acts of making and selling infringing goods.
3. According the principle that he who is affirming must prove, the appellant shall adduce
evidence to prove the appellee's infringement, otherwise, he shall bear the legal consequences
for incapability to adduce evidence for the facts.
Based on the above, Shanghai Higher People's Court entered a judgment on October 21, 2008:
reject the appeal and sustain the original judgment.
Copyright reserved by LLR (China) Intellectual Property Co., Ltd. (2009-02-23)