Just now! Sogou and Baidu input law patent dispute final judgment!

On March 30, the Shanghai Higher People's Court (hereinafter referred to as Shanghai High Court) issued an online judgment on the patent infringement case of Beijing Sogou science and Technology Development Co., Ltd. (hereinafter referred to as Sogou company) v. Baidu online network technology (Beijing) Co., Ltd., Beijing Baidu Online Information Technology Co., Ltd. (hereinafter referred to as "two Baidu companies") and Shanghai Tianxi Trade Co., Ltd. (hereinafter referred to as "Tianxi company"), which was rejected in the final trial All appeals of Sogou company were returned and the original judgment was upheld.

Previously, Sogou company and Baidu company have filed lawsuits in Beijing and Shanghai around the "input method" invention patent, which has aroused widespread concern of the society.

"Input method" causes disputes

As a famous Internet company, Sogou company has an invention patent named "a method and an input method system for user words to participate in the input of intelligent words". And two Baidu companies produced and released Baidu input method.

In November 2015, Sogou company purchased a "one plus" mobile phone through notarial security procedures. The mobile phone is pre installed with Baidu input method software, and the invoice issuing unit is Tianxi company.

On November 16 of the same year, Sogou company filed a lawsuit with Shanghai Intellectual Property Court, requesting the court to order Baidu and Baidu company to immediately stop the infringement, including stopping the production of Baidu input method infringing the patent rights of Sogou company, stopping the publication of Baidu input method infringing the patent rights of Sogou company on their own or third-party operated websites or application platforms for public users to download, and stopping the infringement The patented Baidu input method is provided to mobile phone manufacturers to pre install them in the mobile phones they produce and sell.

At the same time, Sogou company requested that Tianxi company immediately stop promising to sell and sell mobile phones with Baidu input method that infringed Sogou company's patent right. The two Baidu companies shall compensate Sogou company for all kinds of economic losses of 10 million yuan, of which 50000 yuan shall be jointly and severally compensated by Tianxi company and the litigation expenses shall be jointly borne by the three defendants.

During the first instance litigation, Sogou company issued the statement of opinions on the invalidation case No. 4w104282 to the Patent Reexamination Board of the former State Intellectual Property Office on the patent involved in April 2016. In March 2017, Sogou company applied for judicial identification. In July, the intellectual property judicial appraisal office of the software and integrated circuit promotion center of the Ministry of industry and information technology issued the judicial appraisal opinion. The appraisal conclusion shows that some technical features of Baidu input method software are not the same as those of Sogou company's relevant patents. In December, the court of first instance organized Sogou company and two Baidu company agents and expert assistants, technical investigators and relevant experts to inspect the source code of Baidu input method software.

After the trial, the Shanghai Intellectual Property Court made a first instance decision to reject the plaintiff Sogou company's all claims. The case acceptance fee is 81800 yuan, the judicial appraisal fee is 150000 yuan, and the appraiser's court appearance fee is 49044 yuan, which shall be borne by Sogou company.

Sogou company refuses to accept, and appeals to Shanghai high court to request the court of second instance to revoke the first trial decision, send the case back to the retrial or change the judgment to support all litigation claims of Sogou company against Baidu company in the first trial.

The focus of the dispute

In the second trial, Shanghai high court, Sogou company and two Baidu companies conducted relevant tests on Baidu input method software. Tianxi company did not submit the defense opinions and new evidence to Shanghai high court, while Sogou company and two Baidu companies had a heated debate around the three major controversial focuses.

Focus 1: does Baidu input method software fall into the scope of patent protection?

Sogou company believes that it is the patentee of the invention patent of "a method for user words to participate in the input of intelligent group words and an input method system". The subject name of claim 1 of the patent is "a method for establishing a user multi database". Baidu input method software has the same technical features. The court of first instance also misinterpreted the technical characteristics of the "user pairs of words with neighboring relations" in patent claim 1. The experimental test results provided by Sogou company showed that Baidu input software not only stored whole words, but also stored two yuan pairs of words, and called two yuan pairs in the process of word formation.

As for the understanding of the sentence "the probability of adjacent occurrence of the user's words at the time of the user's input", Sogou company believes that the probability is the possibility. When the number of observations is large enough, the frequency can be regarded as the probability. Therefore, from the perspective of the possibility of word occurrence, "word frequency" and "probability" belong to the same technical characteristics.

According to the two Baidu companies, the court of first instance found that the facts are clear. Baidu input method software stores the whole word, does not store the adjacent user word pairs, does not exist the user multiple database, which is a method to establish the user word database.

The probability mentioned in the patent refers to the probability of adjacent occurrence of user word pairs when the user enters them stored in the user binary library, and the calculation method of the probability is t (a, b) / SUBI, rather than all the probabilities in general. Baidu input method software only counts the number of times the user's words are input, not the probability of the user's words. "Word frequency" and "probability" belong to both different and different technical means.

Focus 2: is the burden of proof of the court of first instance reasonable?

Sogou company believes that its test results in court show that Baidu input method software not only stores the whole word, but also stores two yuan word pairs, and calls two yuan pairs in the group words, so Sogou company has proved that Baidu input method software has realized the technical effect achieved by the patent involved in Baidu's input method software, and the burden of proof should be transferred. Move to two Baidu companies. Now, the two Baidu companies have not submitted evidence to prove that Baidu input method software adopts a technical solution different from the patent protection involved to achieve the technical effect of the patent, and should bear the adverse legal consequences.

Two Baidu companies believe that they have refutation and experiment for every experiment of Sogou company, and also provide verification experiment and source code to confirm that Baidu input method software does not fall into the scope of patent protection involved. They have tried their best to give all the evidence, and Sogou company's claim can not be established.

Focus 3: does the court of first instance hinder the right of proof and cross examination of Sogou company?

According to Sogou, in the first instance, the two Baidu companies asked not to hear in public for the reason of involving technical secrets. Without examining whether the claim was established, the court directly followed the requirements of the two Baidu companies. In the course of the lawsuit, only Sogou company's agents were allowed to read the evidence, refutation experiment and specific refutation reasons provided by the two Baidu companies in court, and Sogou company's employees and technology were not allowed The staff read "Baidu input method user library implementation method and defense reason description" and so on, which makes Sogou company difficult to fully understand the evidence, counter evidence experiment and specific refutation reason provided by the two Baidu companies.

When inspecting the source code of Baidu input method software program, the court of first instance only allows the employees of law firm entrusted by Sogou company to watch the demonstration of the appellee in a short time as the agent ad litem or expert assistant, and does not allow the employees of Sogou company (as the expert assistant) to watch the demonstration, which seriously damages the right and needle of Sogou company to cross examine the evidence Right to refute the claims of Baidu and Baidu.

In addition, the court of first instance only conducted one-sided inspection in accordance with the instructions on site inspection scheme provided by Baidu and Baidu in advance, limiting Sogou's right to know the evidence provided by Baidu and Baidu.

Two Baidu companies believe that their relevant defense opinions and explanations include the design concept and implementation method of Baidu input method software. The court of first instance has given Sogou company enough time and opportunity to read relevant materials and cross examine relevant evidence.

At the same time, the source code inspection is carried out in the presence of judges, technical investigators, experts, Sogou company and Baidu company. The source code of Baidu input method software involves the core business secrets of two Baidu companies. The court of first instance held that it should not directly disclose it to Sogou company. However, the court of first instance gave Sogou company enough time to read and study the implementation of Baidu input method software. Sogou company had full opportunity and time to give a cross examination opinion on the source code of Baidu input method software. Therefore, Sogou The claim that the right of cross examination of dog company is damaged cannot be established.

Final judgment dismisses appeal

On March 30, the collegial panel delivered a second instance judgment. It is reported that the judgment of the case is 61 pages long, totaling more than 31000 words, and the court has made detailed reasoning on the three major controversial focuses.

First of all, Shanghai high court holds that if the subject name is only a summary of the technical solution composed of all the technical features, rather than a limitation of the technical features, its limitation on the claims is generally limited to the determination of the technical field to which the patent technical solution is applicable. The technical field can be defined by ordinary technical personnel in the art by reading the claims and the description. In this case, the technical field of Sogou patent user multi database is the same as that of Baidu input method software user vocabulary.

In addition, Sogou patent distinguishes the binary relation of self-made words and realizes the invention effect on this basis. Therefore, "user word pair with adjacent relationship" contains two meanings: one is the combination of words or words; the other is the adjacent relationship between words or words, that is, who is adjacent to whom. Baidu input method uses the whole word storage method, and does not get the adjacent user word pairs.

For the probability, the probability of Sogou's patent is affected by the total number of user input binary words, while from the existing inspection and related experimental results, the word frequency of Baidu input method software is not affected by the total number of user input words. Sogou's relevant patent claims and specifications clearly distinguish the different expressions of "word frequency" and "probability", so "word frequency" and "probability" have different meanings, belong to different technical means, and do not constitute the same technical features. In conclusion, baidu input method software does not fall into the scope of Sogou's patent protection.

Secondly, Shanghai high court believes that in the case of computer software patent infringement, the process of the accused infringing software to achieve a certain technical effect and function is usually invisible to the end user, so it is necessary to reasonably allocate the burden of proof of the parties in combination with the parties' ability of proof, the corresponding relationship between the phenomenon and the method process.

In this case, Sogou company proposed relevant experiments to prove that Baidu input method software stores and calls binary word pairs in the process of word formation, while Baidu company and Baidu company carried out a series of counter experiments to prove that they use the whole word storage mode, there is no user word pair with adjacent relationship, and the probability of adjacent user word pairs appearing in user input is not counted and stored. And the two Baidu companies also submitted the baidu input method software source code to the court of first instance for inspection, which has fulfilled the corresponding burden of proof. The court of first instance has no improper distribution of the burden of proof for Sogou company and the two Baidu companies.

Finally, Shanghai high court holds that the case involves the realization of Baidu input method software user's Thesaurus. According to the application of two Baidu companies, the court of first instance did not improperly hear the part of Baidu input method software technology fact finding in private. The relevant defense opinions and statements of the two Baidu companies claimed by Sogou company belong to the opinions of the parties. The relevant statements contain the design concept and implementation method of Baidu input method software. Moreover, the court of first instance has given Sogou company sufficient time and opportunity to read the relevant materials.

In addition, the Shanghai High Court verified to the relevant experts involved in the first instance source code inspection. Under the auspices of the first instance court, the entrusted litigation agents and expert assistants, technical investigators and relevant experts of Sogou company and Baidu company inspected the source code of Baidu input method software. Sogou company has sufficient time to read the source code of Baidu input method software , so Sogou's reason can't be established.

In conclusion, the Shanghai High Court held that Sogou's appeal could not be established and rejected.