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Skillsinfringement-triage

infringement-triage

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Updated 10-15 20:29

About this skill

/infringement-triage

This is a preliminary screening, not a finding of infringement or non-infringement. Infringement analysis depends on a large number of facts and is legally very complex. Taking action based on screening results — sending an infringement warning letter, refusing to cease, filing litigation, or deciding not to sue — without attorney review, is a common cause of companies ultimately bearing adverse litigation costs, procedural sanctions, declaratory judgment actions of non-infringement, and (in patent cases) punitive damages.

Instructions for Use

  1. Read ~/.claude/plugins/config/claude-for-legal-zh/ip-legal/CLAUDE.md. If it contains [PLACEHOLDER], stop and direct to /ip-legal:cold-start-interview。
  2. Execute according to the following workflow.
  3. Ask which right is involved — trademark / copyright / patent / trade secret / mixed. If mixed, screen each right separately; do not analyze them together.
  4. Perform general case information intake (party status — rights holder or accused party, jurisdiction, statute of limitations, evidence).
  5. Analyze the pattern-specific factors item by item:
    • Trademark— likelihood of confusion test + dilution of well-known trademarks (if well-known status is claimed) + false advertising (if there are comparative claims).
    • Copyright— ownership + registration status + access + substantial similarity
      • fair use + notice-and-takedown rules (if applicable).
    • Patent— preliminary claim chart analysis (use fto-triage output structure); literal infringement + doctrine of equivalents; indirect infringement + divided infringement; invalidity defenses to consider.
    • Trade secret— secrecy + reasonable confidentiality measures + acts of infringement; choice of law priority + reverse engineering defense.
  6. Generate the factor checklist and pointers — which factors favor the rights holder, which factors favor the accused party, and which are ambiguous. Never reach a conclusion.
  7. Write the screening memorandum into the matter folder or practice output folder. Apply the work product header according to role.
  8. Conclude with recommended next steps, such as triggering the non-attorney threshold if the role is non-attorney, and — if the practice position supports an enforcement claim — propose drafting an infringement warning letter via /ip-legal:cease-desist or submitting a takedown notice via /ip-legal:takedown . Do not draft automatically.

This skill never reaches a conclusion. If uncertain, flag it — the attorney decides.

Example

/ip-legal:infringement-triage "竞争对手在第9类推出了一款名为APEXSEED的工具——我们在第9类已有APEXLEAF注册商标；是否存在混淆可能性？"

/ip-legal:infringement-triage "前工程师将我们模型架构的笔记带到竞争对手处——可能构成商业秘密侵权？"

/ip-legal:infringement-triage

(the skill will ask which right is involved and the facts.)

This is a preliminary screening, not a finding of infringement

The safety guardrail most emphasized by this plugin. It must be noted at the top of every output. It cannot be omitted or weakened.

This is a preliminary screening, not a finding of infringement or non-infringement. Infringement analysis depends on a large number of facts and is legally very complex. Screening identifies factors and flags the most important ones; it does not reach conclusions. Determining whether something constitutes infringement is a legal opinion and requires a lawyer to make a judgment based on the facts, the scope of rights, the applicable governing law, and possible defenses. Acting on screening results—sending a cease-and-desist letter, refusing to stop, filing suit, or deciding not to sue— without attorney review is a common reason companies ultimately bear adverse litigation costs, procedural sanctions, declaratory judgment actions of non-infringement, and (in patent cases) punitive damages.

Failing to identify a conflict is a one-way door—the cease-and-desist letter is not sent, the trademark becomes generic in the market; claims are not pursued, the statute of limitations expires; the copied copyrighted work remains displayed on the website. Over-identification is a two-way door—counsel narrows the scope. Stand on the two-way door side.

Matter Context

Matter Context. Check the practice-level CLAUDE.md for ## 事项工作区. If Enabled is ✗(the default state for legal users), skip the rest of this paragraph—each skill uses practice-level context, and the matter mechanism is invisible. If enabled and there is no active matter, ask: "Which case does this matter belong to? Run /ip-legal:matter-workspace switch <slug> or reply 实务级." Load the active matter's matter.md to obtain matter-specific context and override settings. Write output to the matter folder ~/.claude/plugins/config/claude-for-legal-zh/ip-legal/matters/<事项slug>/. Unless 跨事项上下文 is on, never read files from other matters.

Infringement screening usually leads to cease-and-desist letter drafting or takedown notice routing. If there is no active matter and the practice is private practice, create one—screening, the cease-and-desist letter, and any subsequent reply belong to the same workspace.

First load the practice profile

Read ~/.claude/plugins/config/claude-for-legal-zh/ip-legal/CLAUDE.md. Extract:

  • Role from ## 使用者.
  • Enforcement posture from ## 维权立场 — screening output should end with routing recommendations consistent with the declared posture (aggressive / balanced / conservative) and the designated approver for the corresponding letter type.
  • Place of registration / place of enforcement from ## 知识产权实务画像 — determines the governing test applied by default.
  • Integrations from ## 可用集成 — judicial document search, intellectual property databases, etc. affect whether screening can cite case law, prior rulings, or prior art.
  • Decision posture from ## 主观法律判断的决策立场 — this skill never reaches conclusions on subjective thresholds.

If the configuration contains [PLACEHOLDER], display the following prompt:

I notice you have not yet configured a practice profile—this is what I use to tailor posture, jurisdiction, and approval chain to your practice.

Two options:

  • Run /ip-legal:cold-start-interview(about 2 minutes) to complete configuration, and then I will tailor output to your practice.
  • Reply "provisional" and I will use generic defaults—China jurisdiction, medium risk appetite, lawyer role, no practice manual—and mark each output [临时 — 配置你的实务画像以获得定制输出], so you can see what I can do before committing.

Provisional Mode

If the user replies "provisional", proceed normally with the infringement screening, using the following general default values: medium risk appetite, lawyer role, China jurisdiction, no practice manual (perform a full analysis rather than matching a position checklist). In the review notes and in each analysis module, mark [临时]. Append at the end of the output:

"The above is a general run based on default assumptions. Run /ip-legal:cold-start-interview to obtain output customized for your practice—your practice manual, your jurisdiction, your risk appetite. About 2 minutes."

Mode selection

Before anything else, first ask:

Which right are we screening?

  1. Trademark — likelihood of confusion, dilution, or false advertising
  2. Copyright — substantial similarity, fair use, notice-and-takedown rules
  3. Patent — preliminary claim chart analysis, literal infringement + doctrine of equivalents
  4. Trade secret — secrecy, reasonable confidentiality measures, acts of infringement
  5. Mixed / uncertain — describe the facts, and I will choose

If the user selects "uncertain", assist them in classifying it. The same facts may involve multiple rights (for example, a competitor's product uses our mark—trademark; and the product is highly similar to ours—possible patent, copyright in the packaging, possible trade dress; and a former employee launched the product—trade secret).

If multiple rights are involved, perform the screening separately for each right. Do not mix the analyses. Each right has different factors, different jurisdictional rules, and different remedies.

Case information intake (common to all modes)

Before analyzing the factors:

  1. Position. Are you the potential rights holder (the other party is copying your rights) or the potential accused party (we are being scrutinized)? The factors are symmetrical, but the outputs differ—a "my rights are being copied" screening leads to an enforcement demand letter; a "we may be exposed" screening leads to a risk memorandum.
  2. Jurisdiction. Which country/region/court? Default to China jurisdiction (mark if there are foreign-related elements).
  3. Limitations. Is the clock running on the statute of limitations or delayed assertion?
  4. What evidence/evidence materials/source documents do you have? Screenshots, URLs, packaging photos, code snippets, former employee contracts.

Wait for the reply before analyzing the factors.

Trademark mode

Likelihood of confusion

Apply the likelihood-of-confusion standard under Chinese trademark law. Under Article 57 of the Trademark Law [法条原文] and Articles 30-33, analyze the following factors one by one and indicate the direction of each factor:

  • Similarity of the trademarks — shape, sound, meaning, overall commercial impression.
  • Similarity of the goods or services — according to the Nice Classification of Goods and Services and the general perception of the relevant public.
  • Degree of attention of the relevant public — ordinary consumers or professionals in a specific industry.
  • Distinctiveness and fame of the asserted trademark — coined / arbitrary / suggestive / descriptive acquired distinctiveness through use / generic.
  • Subjective intent — whether there is evidence of intent to copy or imitate.
  • Actual confusion — any evidence (investigation, misdirected mail, social media confusion).
  • Degree of market overlap — whether the parties' goods/services markets intersect.

Well-known trademark dilution

Apply Article 13 of the Trademark Law [法条原文] regarding the protection of well-known trademarks:

  • Well-known threshold. The rights trademark must be well known to the relevant public in China — a trademark known only in a niche field is insufficient.
  • Type of dilution. Blurring (weakening distinctiveness) and tarnishment (harming reputation).
  • Defenses — fair use, news reporting, non-commercial use.

If the rights trademark is not clearly well known, flag dilution as less likely.

False advertising / comparative advertising claims

If the screening was triggered by a competitor's comparative advertising or product attribute claims:

  • Apply Article 8 of the Anti-Unfair Competition Law [法条原文] regarding false advertising and the relevant provisions of the Trademark Law.
  • Flag whether the statement is literally false, implicitly false, or puffery. Puffery is not actionable.
  • What evidence the rights holder has or needs to support it.

Output

Factor table; factors favoring each party; a "non-determination" conclusion row. End with routing recommendations for the enforcement stance of the practice profile.

Copyright mode

Ownership

Is the claimant the copyright owner (or an exclusive licensee with standing to sue)? Focus on works made in the course of employment, works of joint authorship, assignments, and presumption of authorship issues.

Registration

Article 11 of the Copyright Law [法条原文] provides that copyright arises upon completion of the creation of the work, and registration is not a prerequisite for litigation (unlike U.S. 17 U.S.C. § 411). However, a copyright registration certificate (issued by the National Copyright Administration) is prima facie evidence of ownership. Flag registration status.

Access + substantial similarity

Two paths to proving copying:

  • Access + similarity constituting copying — the defendant had an opportunity to access and the work has similar features proving copying.
  • Striking similarity — even without evidence of access, the degree of similarity is so highly unusual that independent creation is extremely unlikely.

For substantial similarity, focus on the overall look-and-feel test and the application of the "access + substantial similarity" rule in Chinese judicial practice.

Fair use

Article 24 of the Copyright Law [法条原文] sets out specific circumstances of fair use. China adopts an exhaustive enumeration model, unlike the U.S. four-factor analysis. Focus on:

  1. Purpose and nature of the use (personal study/research, introduction and commentary, news reporting, and other statutory circumstances)
  2. Nature and extent of the use
  3. Effect on the potential market for or value of the original work

Notice-and-takedown rule

Articles 14-17 of the Regulations on the Protection of the Right to Network Dissemination of Information [法条原文] and Articles 42-43 of the E-Commerce Law [法条原文]. If the accused party is a network service provider, flag whether the safe harbor rule applies: qualified notice procedure, timely takedown, no actual or constructive knowledge, counter-notice mechanism.

Output

Factor flags; fair use balancing ("screening makes no conclusion"); ownership/registration/safe harbor threshold reminders. End with routing by stance.

Patent mode

Detailed framework ported over /ip-legal:fto-triage。 This mode is the mirror image of the FTO skill—the same claim chart, the same doctrine of equivalents annotations, the same all-elements rule—applied to the accused product rather than to one's own product.

Design Patent — Triage Before the Process Begins

First check the registration number of the asserted patent. Chinese patent numbers begin with a type code: invention patent (1), utility model (2), design (3).

  • Design patent (Article 2, Paragraph 4 of the Patent Law). A different test standard, a different claim structure, different damages. Do not build a claim chart, do not apply the doctrine of equivalents, do not perform element-by-element comparison. A design patent is based on the design shown in drawings or photographs; treating the drawings as a list of claim elements of a utility patent is erroneous legal reasoning.
  • Utility model patent. Preliminary examination system, not substantively examined. Flag issues of stability of rights.
  • Invention patent. Substantively examined; stability of rights is relatively strong.

Design patent infringement test — ordinary consumer observation. Under Article 23 of the Patent Law [法条原文], the question is whether an ordinary consumer considers the accused design and the patented design to be identical or similar in overall visual effect.

Functional and ornamental filtering. A design patent protects only ornamental features; functional features are not protected. If the accused similarity lies in features dictated by function, flag that the overlap may not fall within the scope of patent protection.

Damages annotation. Design patent infringement damages are determined under Article 71 of the Patent Law [法条原文], based on the right holder's loss, the infringer's profit, or a reasonable royalty. Flag but do not determine the amount.

Trade dress cross-annotation. The same facts of ornamental appearance usually also involve Article 6 of the Anti-Unfair Competition Law [法条原文] regarding protection of packaging and decoration. Flag trade dress as a parallel path; the test standards differ but the evidence overlaps.

Design Patent Screening — Output

Because the patent drawings or the accused product cannot be viewed directly, design screening mainly requests materials and provides a framework for analysis:

  • Request images. "Without seeing the patent drawings and the accused product, I cannot perform the ordinary consumer test. Please provide: (a) the patent drawings (all views), (b) photographs of the accused product from comparable angles, (c) any prior designs you are aware of."
  • State of the prior design. Ordinary consumer observation is a comparative test—the consumer must be aware of the prior design.
  • Functional and ornamental analysis. Flag each feature as functional (not protected) or ornamental.
  • Damages annotation Same as above.
  • Trade dress cross-annotation Same as above.

Invention Patent / Utility Model Workflow

Differences in patent systems across jurisdictions. China's patent examination system (all-elements rule, doctrine of equivalents, prosecution history estoppel, damages under Article 71 of the Patent Law) differs from other jurisdictions. When a non-China jurisdiction is involved: "This analysis uses the Chinese patent framework. Products manufactured and sold overseas require patent analysis in the corresponding jurisdiction. I can flag issues found in the China analysis, but infringement and validity determinations require [jurisdiction]-specific examination."

Workflow

  • Accused product / process / method — detailed technical description.
  • Identification of the patent in dispute.
  • Comparison table for each independent claim: element-by-element mapping to the accused product.
  • Analyze literal infringement first. Doctrine of equivalents as a flag.
  • Indirect infringement (inducement, contributory) as a flag.
  • Invalidity defenses to consider — novelty (Article 22, Paragraph 2 of the Patent Law), inventiveness (Article 22, Paragraph 3 of the Patent Law), insufficient disclosure (Article 26, Paragraph 3 of the Patent Law), lack of clarity of claims (Article 26, Paragraph 4 of the Patent Law), not falling within patentable subject matter (Articles 2 and 25 of the Patent Law). Known invalidation outcomes, known prior art, known prosecution history. Flag each one; do not draw conclusions.
  • Unenforceability defenses — flag but do not draw conclusions.
  • Damages posture — infringer's profits vs. actual losses vs. reasonable multiple of a license fee (Article 71 of the Patent Law [法条原文]）。

Output

Claim comparison table. Element flags. Defense flags. Route to a patent attorney. See fto-triage skill for the complete output structure — the infringement screening patent mode uses the same format, with "accused product" replacing "own product".

Hand off the complete claim comparison table

If an element-by-element detailed claim comparison table suitable for an infringement or invalidity claim is needed, this may be referred to a professional patent attorney for completion. The claim comparison table in this screening is a first-round analysis, identifying the strongest and weakest mappings; a complete comparison table requires citations, claim construction flags, and the verification workflow needed for a claim.

Trade secret mode

Does it constitute a secret?

Apply Article 9 of the Anti-Unfair Competition Law [法条原文] regarding trade secrets. Flag:

  • Not known to the public — not generally known or readily accessible to persons in the relevant field of the information.
  • Has commercial value — has actual or potential commercial value because it is not known to the public.
  • Corresponding confidentiality measures have been taken — the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases Involving Infringement of Trade Secrets specifically enumerate the types of reasonable confidentiality measures.

Reasonable confidentiality measures

  • Confidentiality agreements signed with employees, contractors, and counterparties. Scope, execution, enforcement?
  • Access controls — technical (role-based), physical (access control systems), organizational (need-to-know).
  • Marking — confidentiality markings on documents, code, and data.
  • Exit interviews / return of materials upon departure.
  • Trade secret policies / training.

Flag existing measures and missing measures. Reasonableness depends on the specific facts; the screening does not decide whether measures are reasonable — it only lists them.

Infringing acts

Obtained by improper means, or disclosed/used in breach of a confidentiality obligation. The improper means listed in Article 9 of the Anti-Unfair Competition Law include: theft, bribery, fraud, coercion, electronic intrusion, or other improper means.

  • Former employee fact pattern: New employer, overlapping work content, departure timing, documents taken (have they been returned?), access logs, recruitment channels, employee invention agreement.
  • Inadvertent disclosure: Does the discloser have a confidentiality obligation? Did the recipient know or have reason to know of the breach?
  • Reverse engineering — if obtained by lawful means, it is a lawful defense. Note the factual feasibility of reverse engineering.

Applicable law

The relationship between the application of the Anti-Unfair Competition Law and contract breach claims. Note but do not conclude.

Output

Three sets of factor annotations — secrecy, measures, infringing acts — each with factors favorable to each party. Conclude with position-based routing.

Output format (applies to all modes)

Prepend the work product header from ~/.claude/plugins/config/claude-for-legal-zh/ip-legal/CLAUDE.md ## 输出 before the output.

[工作成果页眉]

# 侵权筛查 — [商标 | 著作权 | 专利 | 商业秘密]（非认定）

**这是初步筛查，而非侵权认定或非侵权认定。** 筛查识别因素并标注最重要的因素；
不作结论。认定需要律师基于事实、权利范围、管辖和抗辩事由作出判断。
依据筛查结果采取行动而未经过律师审查，是公司最终承担不利诉讼费用、程序制裁、确认不侵权之诉和惩罚性赔偿的常见原因。

**筛查结果：** [绿 / 黄 / 红 — 一句话说明理由]

## 地位和范围

- **当事人地位：** [权利人 / 被控方]
- **争议权利：** [商标 / 著作权 / 专利 / 商业秘密]
- **管辖：** [中国法院 — 具体地区 / 涉外]
- **适用法律框架：** [引用适用测试和法规]
- **诉讼时效 / 迟延主张态势：** [时效状态]
- **已审查的证据/材料：** [清单]

## 因素分析

[各模式特定因素表 — 混淆因素 / 合理使用因素 / 权利要求对照表
/ 商业秘密要素。每项因素有标注和指向。这是因素清单，非裁决。]

## 抗辩和门槛

[模式特定：淡化驰名门槛 / 登记前置条件 /
避风港规则 / 无效 / 法律适用 /
反向工程 / 同意 / 许可 / 迟延主张 / 诉讼时效。
逐项标注。]

## 因素指向汇总

| 因素 | 标注 | 指向（权利人 / 被控方 / 混合） |
|---|---|---|
| [因素1] | [说明] | [指向] |

**结论：** *本技能不作结论。* 采取行动前需律师判断。
有利于[方向]的因素包括[brief summary]；
有利于[方向]的因素包括[brief summary]。

## 建议下一步

- [律师正式意见 / 按实务画像转至指定知识产权外部律师]
- [证据保全和保存 — 如诉讼时效在走]
- [决定前需补充的事实 — 如访问日志、审查历史、
  市场调查、问卷证据]
- [按 `~/.claude/plugins/config/claude-for-legal-zh/ip-legal/CLAUDE.md`
  `## 维权立场` 的路由建议，如立场为积极维权]

## 引文核实

本文引用的每项案例、法条、注册号、权利要求引用和证据材料
在依赖前必须与权威来源核实。管辖测试标准因地区而异且可能随时变化——确认当前的约束性权威依据。

Non-lawyer threshold

Before output, read ## 使用者. If the role is "non-lawyer":

This output is research screening, not legal advice. Sending an infringement warning letter, deciding not to stop, filing litigation, or relying on "it constitutes fair use" based on this screening produces legal consequences — including procedural sanctions for unsupported claims, the risk of a declaratory judgment of non-infringement action triggered by a warning letter, punitive damages in patent cases, and adverse cost allocation in unfair competition cases. Before you act, a lawyer's assessment is needed.

The following is a summary provided to the lawyer:

[Generate a 1-page summary: disputed rights, status, facts and evidence, identified factors, annotated defenses, and three questions to ask the lawyer.]

If you need to find a practicing lawyer: your local bar association's referral service is the fastest starting point. For patent cases, confirm that the lawyer has patent agent qualifications.

Deliver the screening together with the summary.

Output location

If the matter workspace is enabled and there is an active matter, write to ~/.claude/plugins/config/claude-for-legal-zh/ip-legal/matters/<事项slug>/outputs/infringe-<模式>-<主题slug>-YYYY-MM-DD.md. Otherwise write to ~/.claude/plugins/config/claude-for-legal-zh/ip-legal/outputs/infringe-<模式>-<主题slug>-YYYY-MM-DD.md and display the path.

If there is an active matter, append a log line to the matter's history.md .

Handoff to enforcement skill

If the screening output points to an enforcement claim and the practice profile's position supports it, ask:

Do you want me to draft an infringement warning letter? Run /ip-legal:cease-desist. I will use this screening's factor list as the factual basis and apply the approval chain in your practice profile — the letter will not be sent until the approver signs off.

Or if the mode is copyright and the accused content is hosted content:

Do you want me to prepare a takedown notice? Run /ip-legal:takedown。

Letters must not be automatically drafted from the screening. The decision to enforce belongs to the approver, not the screening.

Conclude with the action options decision tree

Conclude with the action options decision tree specified in CLAUDE.md ## 输出 . Customize the options to the content this skill just generated — the five default branches (draft X, escalate, gather more facts, wait and observe, other matters) are only a starting point, not a fixed template. The lawyer chooses from the decision tree.

What this skill does not do

  • Never reaches an infringement or non-infringement conclusion. Strongest safety guardrail.
  • Does not substitute for survey evidence, damages experts, or claim construction.
  • Does not evaluate jurisdiction-specific defenses outside the screening jurisdiction. If the facts involve cross-border elements, flag that foreign law analysis is required.
  • Does not decide fair use as a legal question. Fair use depends on a large number of facts and is left to the lawyer and the final court to determine.
  • Does not draft infringement warning letters, takedown notices, or complaints. These are separate skills (/ip-legal:cease-desist、/ip-legal:takedown), subject to the approval chain in the practice profile.
  • Does not cite the output to the opposing party. If a header applies, this is a privileged document.

Tone

Factor-by-factor, annotation-by-annotation analysis. No vague rhetoric. The safety guardrails at the top complete the scoping; the analysis section performs the analysis. When the lawyer leaves the output, they should know clearly which factors were annotated, which defenses apply, and what to do next—enforce or stand down.