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Judicial Interpretation Of The Supreme People's Court Concerning The Application Of The Laws In Patent Infringement Cases - December 28, 2009

The "Judicial Interpretation of the Supreme People's Court concerning the Applicability of the Laws in Patent Infringement Cases" was passed at the 1480th meeting of the Supreme Court Case Hearing Committee on 21 December 2009 and is hereby promulgated with effect on 1 January 2010.
 
28 December 2009
 
To fairly hear patent infringement cases, this Judicial Interpretation is formulated in compliance with the "Patent Law of the People's Republic of China", "Civil Proceedings Law of the People's Republic of China" and other relevant statutory provisions for the actual needs of hearing.
 
Article 1 The people's court shall determine the scope of patent protection based on the rights claimed by the right owners under Article 59 (i) of the Patent Law. The people's court shall permit the right owners to alter the claims for their rights before the end of the court debate at first instance.
 
Where a right owner wishes to determine the scope of patent protection by the request for the attached rights, the trialing people's court shall determine the scope of patent protection by the additional technical features recorded in the request for the attached rights as well as the technical features recorded in the related request for the rights.
 
Article 2 The people's courts shall determine the contents in the request for the rights under Article 59 (i) of the Patent Law based on the records in the request for the rights in question in conjunction with the understanding of the request for the rights by a reasonable technician in the same area after reading the related descriptions and drawings.
 
Article 3 The people's courts may interpret the requests for the rights by consulting the related descriptions and drawings, the rights claimed in the request and patent assessment documentations. Where definitions of specific terms are provided in the related descriptions, such definitions must be used.
 
Where the request for the rights cannot be determined in the manners as specified above, such request may be determined by consulting tool books, text books and other open documents as well as the reasonable understanding of a reasonable technician in the same area.
 
Article 4 Where in a request for the rights the technical features are expressed in terms of functions and effects, the trialing people’s court shall determine the contents of the technical features by considering the actual implementation and methods for the implementation of such functions and effects as expressed in the related descriptions and drawings.
 
Article 5 Where in a patent infringement case the right owner intends to include a technical proposal into the scope of patent protection that is only expressed in the related descriptions or drawings but not recorded in the request for the rights, the trialing people’s court shall not accept such inclusion.
 
Article 6 Where a patent applicant or patent right owner in the patent authorization or invalidation process gives up a technical proposal by expression in the request for the rights, amendments to the related descriptions or representation but intends to include such technical proposal into the scope of patent protection in a patent infringement case, the trialing people’s court shall not accept such inclusion.
 
Article 7 In determining whether the alleged infringing technical proposal falls within the scope of patent protection, the trialing people’s court shall examine all the technical features recorded in the right owner’s request for the rights.
 
Where the alleged infringing technical proposal includes all the technical features expressed in or identical to those expressed in the request for the rights, the trialing people’s court shall conclude that such technical proposal falls within the scope of patent protection. Where in comparing the all the technical features in the alleged infringing technical proposal with all those in the request for the rights there is at least one technical feature is not expressed in or not identical to those expressed in the request for the rights, the trialing people’s court shall conclude that such technical proposal does not fall within the scope of patent protection.
 
Article 8 Where on the products identical or similar to the products that a patented design is used the alleged design is identical or similar to such the authorized design, the trialing people’s court shall conclude that the alleged design falls within the scope of design protection under Article 59 (ii) of the Patent Law.
 
Article 9 The trialing people’s court shall determine whether the products in question are identical or similar by examining the purposes of the product on which the patented designed is used. To determine the purposes of such product, the brief description of the design in question, international design categories, product’s functions, sale and actual use of the product in question and other factors must be considered.
 
Article 10 The trialing people’s court shall determine whether the patented design and alleged design are identical or similar in the view of the knowledge and awareness of the general consumers of the product on which the patented design is used.
 
Article 11 In determining whether the designs are identical or similar, the trialing people’s court shall make the conclusion by examining the overall visual effect of the designs in question based on the features of the authorized design and alleged infringing design. The features are mainly based on the technical functions or the raw materials, interior structure or other features do not affect the overall visual effect will not be considered.
 
The following factors are generally deemed to have more effect on the overall visual effect of a design:
 
(i) Certain part is more observable than the other in general use of the product in question;
 
(ii) The existing design features of the authorized design is distinctive in comparison with other design features of the authorized design.
 
Where the overall visual effect of the alleged infringing design is indifferent from that of the authorized design, the trialing people’s court shall conclude that they are identical. Where the overall visual effects of the alleged infringing design and authorized design are not materially different, it will be concluded that they are similar.
 
Article 12 Where components of a product that infringes a patent on an invention or utility model are used in manufacturing another product, the trialing people’s court shall conclude such activity falls within the scope of Article 11 of the Patent Law. For sale of such another product, the trialing people’s court shall conclude that such sale amounts to the sale activity provided in Article 11 of the Patent Law.
 
For manufacturing and selling another product which is made with the components of a product that infringes a patented design, the trialing people’s court shall conclude that such activity amounts to the sale activity provided in Article 11 of the Patent Law, except such the infringing product has technical functions in such another product.
 
Where, in the events specified in the previous two paragraphs, the alleged infringers work together, the trialing people’s court shall impose joint liability.
 
Article 13 The original products which are acquired by use of patented methods will be recognized by the people’s courts as the products directly acquired by such patented methods under Article 11 of the Patent Law.
 
Products which are subsequently acquired after further processing or handling the original products as specified above will be recognized by the people’s courts as the products directly acquired by use of such patented methods under Article 11 of the Patent Law.
 
Article 14 Where all the alleged technical features fall within the scope of patent protection and are identical to or without material difference from one of the corresponding technical features in an existing technical proposal, the trialing people’s court shall conclude that the technologies applied by the alleged infringer are the existing technologies under Article 62 of the Patent Law.
 
Where the alleged infringing design is identical to or without material difference from an existing design, the trialing people’s court shall conclude that the design used by the alleged infringer is the existing design under Article 62 of the Patent Law.
 
Article 15 Where an alleged infringer in the defence argues for the anticipatory rights of a technology or design that is illegally acquired, the trialing people's shall not accept such argument.
 
In one of the following events, the trialing people's court shall conclude that "the necessary preparations for production or use" as provided under Article 69 (ii) of the Patent Law are made:
 
(i) the key technical drawings or processing documents that are needed in creating the invention in question have been completed;
 
(ii) the key equipment or raw materials that is or are needed in creating the invention in question has or have been made or purchased.
 
The scope originally provided under Article 69 (ii) of the Patent Law includes the production scale existing already before the patent application date as well as the production scale that can be established with the existing production equipment or existing production preparations.
 
In the event that after the patent application date an owner of an anticipatory right already transfers or licenses another party the technology or design that the owner has already applied or made preparations to apply and that the alleged infringer argues that such application falls within the original scope of application, the trialing people's court shall not accept such argument, except that the technology or design in question is transferred or succeeded together with the original enterprise.
 
Article 16 The trialing people's court which concludes in reliance on Article 65 (i) of the Patent Law that the infringer in question has gained benefit from the alleged infringement shall determine the amount of such benefit to the extent limit to the benefit from the patent infringement in question. Other benefit gained from infringing other rights will be reasonably deducted.
 
Where a product infringing a patent on an invention or utility model is a component of another product, the trialing people's court shall determine reasonable damages by considering the value of the component itself, profit from the finished product in question and other factors.
 
Where a product infringing a design right is a package, the trialing people's court shall determine reasonable damages by considering the value of the package itself, profit from the product inside the package in question and other factors.
 
Article 17 Where a product or the technical plan for manufacturing such product is made known to the public before the patent application date, the trialing people's court shall conclude that the product in question is not a new product as provided under Article 61 (i) of the Patent Law.
 
Article 18 In the event that a proprietor sends a cease and desist letter to another party and the recipient or interested party reply the proprietor in writing requesting the proprietor to exercise the right to claim but the proprietor does not revoke such cease and desist letter or fails to commence legal proceedings within one month after receiving such written reply or two months after such written reply is sent and that the recipient or interested party commences proceedings at the people's court requesting that the alleged act of the recipient or interested party should be deemed to be not an infringement, the trialing people's court shall accept such request.
 
Article 19 For alleged infringements committed before 1 October 2009, the people's courts shall apply the Patent Law before the amendments. For alleged infringements committed after 1 October 2009, the people's courts shall apply the amended Patent Law.
 
In the event that an alleged infringement is committed before 1 October 2009 and continues to exist after 1 October 2009 and that the infringer is held liable under the Patent Law before and after the amendments, the trialing people's court shall determine damages in reliance on the amended Patent Law.
 
Article 20 Should there be any inconsistence between this Judicial Interpretation and any other judicial interpretations issued by this Court, this Judicial Interpretation shall prevail.

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