Patent litigation is a means of rights remedy but is often abused in commercial competition as a way to restrain competitors.
Our firm has handled several patent infringement cases in the past, involving important suppliers who are pillars of our country's economy. In transactions with large public companies, naturally, suppliers with competitiveness are favored. Conversely, those lacking competitiveness find it harder to be favored and enter the supplier list. However, competition between rivals is not always conducted through benign means. Sometimes, for commercial benefits, other improper methods are resorted to. Competitors of our clients have filed patent infringement lawsuits, claiming they have legitimate patent rights and demanding our clients not provide related products and services to customers, along with high compensation for damages.

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Usually, in such lawsuits, the plaintiff definitely has legal patent rights, which have been approved by the Intellectual Property Office and thus hold legal effect. However, this does not mean the patent rights are always valid. If the patent lacks validity (such as novelty, progressiveness, etc.), the court can declare the patent invalid and rule in favor of the defendant. Moreover, if the defendant's products and services do not infringe upon the patent rights, patent infringement cannot be established. Therefore, the plaintiff must specifically argue and prove how the defendant infringes upon the plaintiff's patent rights.

Furthermore, in practice, defendants in patent infringement lawsuits often claim the invalidity of the patent as a defense strategy. Courts typically regard the validity of the patent as a prerequisite for determining patent infringement. In other words, the main battleground in patent infringement lawsuits often revolves around disputing the validity of the patent. Here, we briefly introduce the basic elements of patent validity.

Patent validity

Patent validity includes the following basic requirements: industrial applicability, novelty (including deemed loss of novelty), and progressiveness.
The relevant regulations and a brief explanation are as follows:

Requirement	Regulation	Feature	Examination Priority
Industrial Applicability	Patent Law Article 20, Paragraph 1	Can be manufactured or used	Priority
Novelty	Patent Law Article 20, Paragraph 1	Does not constitute a part of prior art	Secondary
Progressiveness	Patent Law Article 20, Paragraph 2	Cannot be easily accomplished by prior art	Last

Industrial Applicability

1. According to Article 20, Paragraph 1 of the Patent Law, the patent should be an "invention that can be utilized industrially.
2. The patent examination guidelines of the Intellectual Property Office under the Ministry of Economic Affairs believe that if the invention for which a patent is applied can be manufactured or used industrially, then the invention is deemed to have industrial applicability. The term "can be manufactured or used" refers to the possibility of the technical means to solve a problem being manufactured or used industrially, not limited to whether the technical means have been actually manufactured or used. However, inventions that theoretically solve a problem but clearly cannot be manufactured or used in practice still lack industrial applicability.
3. Although the Patent Law stipulates that the invention for which a patent is applied must be capable of industrial use, it does not explicitly define what "industry" means. According to the patent examination guidelines of the Intellectual Property Office, "industry" refers to industries in a broad sense, including but not limited to industry, mining, agriculture, forestry, fishing, aquaculture, livestock, as well as auxiliary industries such as transportation, traffic, commerce, etc.
   The presence of industrial applicability is the most fundamental requirement among the patent criteria, meaning it can be determined without the need for a search. In the patent examination process in our country, the applicability of industrial use is prioritized over novelty and progressiveness.

Although the Patent Law stipulates that the invention for which a patent is applied must be capable of industrial use, it does not explicitly define what "industry" means. According to the patent examination guidelines of the Intellectual Property Office, "industry" refers to industries in a broad sense, including but not limited to industry, mining, agriculture, forestry, fishing, aquaculture, livestock, as well as auxiliary industries such as transportation, traffic, commerce, etc.
The presence of industrial applicability is the most fundamental requirement among the patent criteria, meaning it can be determined without the need for a search. In the patent examination process in our country, the applicability of industrial use is prioritized over novelty and progressiveness.

Novelty (including deemed loss of novelty)

1. According to Article 20, Paragraph 1 of the Patent Law: "An invention that can be utilized industrially, which does not fall under any of the following situations before the application, may apply for an invention patent according to this law: (i) already disclosed in publications before the application; (ii) already publicly implemented before the application; (iii) already known to the public before the application."
2.  The subject of the novelty assessment is based on the "claims" within the scope of the patent application. When there are multiple claims within the scope of the patent application, each claim must be assessed individually for novelty. The lack of novelty in one claim does not automatically mean that the other claims lack novelty as well.
3. The method of comparing to determine if it meets the criteria for novelty must be done individually, comparing each independent piece of cited information with the claims of the patent application separately. It is not permissible to combine two or more independent pieces of cited information for comparison.

The patent system is designed to encourage and protect inventions to promote industrial development. By granting the applicant exclusive patent rights, it encourages them to disclose their invention, allowing the public to utilize the invention. Therefore, the invention must contribute to the existing technological development to align with the essence of a patent. In other words, the invention applied for a patent must not constitute a part of the prior art to meet the requirement for novelty. The prior art referred to in the Patent Law includes technologies that have been disclosed in publications, publicly implemented, or known to the public before the application. An invention that differs from the prior art existing before the application date possesses novelty. After passing the novelty examination, the next issue to discuss is whether the invention has progressiveness

Progressiveness

1. According to Article 20, Paragraph 2 of the Patent Law: "Even if an invention does not fall under any of the situations listed in the previous paragraph, it still cannot obtain an invention patent if it can be easily accomplished by a person with ordinary skill in the art based on prior art before the application.
2. According to the patent examination guidelines of the Intellectual Property Office of the Ministry of Economic Affairs, the examination of progressiveness includes overall examination, combination comparison, and item-by-item examination principles. These principles are used to assess whether the invention applied for a patent can be easily accomplished. Simply put, during the progressiveness examination, the overall invention of the patent application should be considered, rather than judging whether the invention can be easily accomplished based on individual or partial technical features alone. The examination methods can include various approaches, such as combining all or part of the technical content in multiple cited documents, combining different parts of technical content within a single cited document, combining the technical content of cited documents with prior art, and combining the technical content of cited documents with common knowledge or other publicly disclosed prior art content with common knowledge. Like with novelty, each claim must be assessed individually.

If an invention differs from prior art, it passes the test of novelty. However, not all new technologies different from prior art are entitled to patent protection. They must also reach a certain degree of advancement, meaning they must meet the "progressiveness" examination to be protected by patent law and enjoy exclusive patent rights, thereby avoiding hindering industrial development.

Innovation and research and development of knowledge are important intellectual property achievements. Through the granting of exclusive patent rights, inventors are encouraged to disclose their technological inventions, promoting industrial development in this era of the knowledge economy. However, if patents are granted excessively, leading to improper use of patent rights, it could potentially hinder the development of industrial culture. Thus, the validity of patents is a core issue in patent infringement disputes.

In exploring the validity of patents and strategies for facing infringement litigation, grasping the three core principles of industrial applicability, novelty, and progressiveness is crucial for protecting innovative outcomes and maintaining intellectual property rights. Appropriate patent applications and legal knowledge can not only prevent legal disputes but also protect the results of technological innovation from infringement. Additionally, accurately assessing the legality of patents is one of the key strategies for responding to infringement litigation, which helps improve the effectiveness of defense and protect the innovative momentum of businesses. As the patent legal environment evolves, continuously updating relevant knowledge and adjusting response strategies is a wise move to support business innovation and intellectual property protection.

Our clients, supported by our legal team's years of litigation experience and intense internal discussions and strategy formulation, successfully convinced the court that the plaintiff's claims were unfounded, leading to a complete victory for our clients. If you have further questions about patent applications or infringement litigation, feel free to contact us. We are willing to provide professional consultation services to protect your innovative achievements.

Reference: Patent Law

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