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On March 25th, 2FIRSTS provided a detailed analysis of the lawsuit filed by GIGAKESION against Heaven Gifts. The e-cigarette brand INSTAFLOW, owned by GIGAKESION, alleges that ELFBAR AF5000 has infringed upon the patented technology of their product, INSTAFLOW. GIGAKESION provided evidence including comparative product structure diagrams, launch time comparison, and patent screenshots. Additionally, GIGAKESION stated that they have filed a lawsuit against Heaven Gifts and Honeycomb Factory for infringement of their patent rights for "infringement of utility model patent rights dispute."
Recently, 2FIRSTS received an email from GIGAKESION, in which they stated:
Regarding the infringement case, mediation has ended and it has officially entered the litigation stage. We have received notices regarding multiple invalid patent applications, but we have sufficient evidence and arguments to defend the stability and innovation of our patents. It is gratifying that our innovation has been respected and supported by overseas channels, and even companies with deep cooperation with Heaven Gifts are actively promoting and selling the original INSTAFLOW products. We hope that other companies will no longer restrict themselves. In order to encourage innovation, protect the healthy development of the industry, and enhance the level of intellectual property protection in China, GIGAKESION and its partners will stand firm and work together!
Regarding the progress of this matter, 2FIRSTS once again communicated with the CEO of Gigacomm and relevant parties from Heaven Gifts.
Heaven Gifts Initiates Request for Invalidation of Patent Rights
In an email, Jika Information presented a Notice of Acceptance of Request for Declaration of Invalidity issued by the National Intellectual Property Office to 2FIRSTS. The notice shows that the invention is called "Detachable Oil Bottle (INSTAFLOW F9)", the patent holder is Shenzhen GIGAKESION Information Technology Co., Ltd., and the requester for the declaration of invalidity is Heaven Gifts (Shenzhen) Technology Co., Ltd.
Acceptance notification shows:
The request for invalidation filed by the requester of the above-mentioned patent on April 2, 2024 has been accepted after passing the formal examination in accordance with the relevant provisions of the rules and examination guidelines. Failure to respond to this invalidation request within one month from the date of this notice will not affect the examination by the National Intellectual Property Office. Two copies of the statement of opinions should be submitted, indicating the case number and patent. According to Article 73 of the Implementing Regulations of the Patent Law, during the examination of the invalidation request, the claims of an invention or utility model patent can be amended, but without expanding the scope of protection of the original patent. The patentee of an invention or utility model patent must not modify the description and drawings, while the patentee of a design patent must not modify the images, photos, and brief description. Any modifications should also adhere to the provisions regarding patent document modifications in Chapter 4.6 of Part II of the fourth section of the Guidelines for Invalidation Proceedings.
Kyle, CEO of GIGAKESION Technology, stated to 2FIRSTS that Heaven Gifts has not responded since their last statement was released. "But they are taking some actions, such as trying to invalidate our patent in the UK, and now they are also trying to invalidate it domestically," Kyle said.
"Our lawyers have all pushed back, so it doesn't really have much of an impact on us," Kyle said. "Our patent has been in place for almost a year, so at this stage, attempting to invalidate it, from our perspective, seems somewhat weak as a rationale."
Kyle mentioned that when applying for patents related to INSTAFLOW, the company conducted a patent search on a patent website. "When we conducted the search, there were no innovations of this kind in the entire international industry, that's why we decided to apply for the patent."
According to Article 45 of the Patent Law of the People's Republic of China (2020 Amendment), from the date of the announcement of the granting of patent rights by the State Council's patent administrative department, any unit or individual who believes that the grant of patent rights does not comply with the relevant provisions of this law may request the State Council's patent administrative department to declare the patent right invalid. Article 46 stipulates that if one disagrees with the decision of the State Council's patent administrative department to declare a patent right invalid or to maintain a patent right, they may file a lawsuit with the people's court within three months from the date of receiving the notification. The people's court shall notify the opposing party involved in the invalidation declaration request procedure to participate in the lawsuit as a third party.
Based on the relevant procedures of patent law, Kyle stated that lawyers have been arranged to defend the case, and the lawyers believe that the probability of invalidating this patent is very low.
GIGAKESION: Willing to Accept Mdiation, but Other Party is "Insincere"
The lawsuit in China has only made preliminary progress, with Kyle expecting his lawyers to appear in court in Shenzhen to argue the case before May 1st.
Is litigation the only option, without the possibility of mediation?
When 2FIRSTS raised this issue, Kyle stated, "We are not saying we refuse to mediate, we are definitely willing to mediate, but Heaven Gifts still uses some relatively unreasonable approaches to criticize us. If it comes to that, we will follow the proper procedures."
He pointed out that Heaven Gifts' denial of the product's design patent has left him confused. The product's design patent has been successfully applied for in the UK, but now "they even want to deny our design patent."
He also revealed that the starting point for his British clients choosing to sue is to defend their legitimate interests and also to express their stance. "Our British clients are very open to mediation, but it did not show sincerity," Kyle said.
Kyle reiterated his opinion, "If these patents are deemed useless, then I believe applying for patents serves no purpose."
At the end of the conversation, he expressed his views on Heaven Gifts.
As industry peers, we hold a positive view of Heaven Gifts, but we believe that as a leading company in the industry, it must take care of everyone's interests rather than disrupt the ecological balance. We also admire their ability to achieve such a large scale, but we want to protect our own interests. I think that since this company is so large, its scope should be broadened.
It is worth noting that 2FIRSTS discovered, through the e-cigarette search system of the Medicines and Healthcare products Regulatory Agency (MHRA) in the UK, that AF5000's 16 new flavor products were announced on April 22nd.
As of the time of reporting, Heaven Gifts has not yet responded to inquiries from 2FIRSTS regarding this matter.
2FIRSTS will continue to monitor the latest developments on this matter.
We welcome news tips, article submissions, interview requests, or comments on this piece.
Please contact us at info@2firsts.com, or reach out to Alan Zhao, CEO of 2Firsts, on LinkedIn
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