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2026-03
One Case a Day | China: Determination of "Use" Infringement - (2023) Supreme People's Court Intellectual Property Final No. 1477
Case Introduction
The acts of infringement stipulated in China's Patent Law include manufacturing, using, offering for sale, selling, importing, etc. In this case, Company B produced the infringing product and provided it to Company A for use. On the surface, it appears that only Company A used the infringing product, while Company B did not commit the act of "using" the infringement. This case clarifies a specific situation:
When an infringing product is manufactured and provided to others for use, and profit is obtained by repurchasing and reselling other products obtained by others using that infringing product, it should be determined that the manufacturer of the infringing product and the other party jointly implemented the act of use.
Case Information
First-instance Information: (2023) Nei 01 Zhi Min Chu No. 7
Second-instance Judgment Date: November 18, 2024
Second-instance Judgment: (2023) Supreme People's Court Intellectual Property Final No. 1477
Basic Facts
Huang acquired the utility model patent named "Material Unloading Machine" through assignment in December 2018. The involved patent protects a material unloading machine product. Using this product allows for obtaining intact packaging bags for secondary use, eliminating the need to destroy the packaging bags in the traditional manner.
Company A and Company B signed a "Sales Contract" stipulating that Company B would provide a bag turning machine (the accused infringing technical solution) for free use, and Company A would provide a packing site and power supply for free. The bag turning machine would be returned to Company B after contract execution. If a certain warehouse of Company A lacked a bag turning machine, Company B would provide one for free use. Ownership of the bag turning machine belonged to Company B.
The accused infringing technical solution contained all the technical features recorded in Claim 1 of the involved patent and fell within the scope of protection of the involved patent right. Company B manufactured the accused infringing product without Huang's permission, infringing upon Huang's patent right. Neither party disputed the above facts or submitted new evidence to refute them.
Controversial Focus
Whether Company B's act constitutes "use" infringement.
Second-instance Court's Opinion
Regarding the act of infringement.
Paragraph 1, Article 11 of the Patent Law stipulates: "After the grant of the patent right for an invention or utility model, except as otherwise provided for in this Law, no entity or individual may, without the permission of the patentee, exploit the patent, that is, may not, for production or business purposes, manufacture, use, offer for sale, sell, or import the patented product, or use the patented process, or use, offer for sale, sell, or import the product directly obtained by the patented process, for production or business purposes."
In this case, the cooperation model between Company B and Company A manifested as: Company B manufactured the accused infringing product and provided it to Company A for free use. Company A, by using the accused infringing product, recovered repackaging bags and then sold the recovered repackaging bags to Company B. Company B profited from selling the repackaging bags, while Company A profited from the price difference between recovering and reselling the repackaging bags.
Under this cooperation model, the acts of Company B and Company A involved mutual utilization and coordination. Company B's act of permitting Company A to use the accused infringing product and Company A's act of directly using the accused infringing product constituted a joint act of use under the meaning of the Patent Law.
Company B, without the permission of the patentee, manufactured the accused infringing product and authorized Company A to use it through the aforementioned cooperation model. Both its manufacturing and use acts constituted infringement. Company B should bear corresponding liability for infringement.
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