Interpretation (II) of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases of Patent Infringement Disputes (Issued in 2016 and Revised in 2020)

Issued by: Supreme People's Court

Document number: Fashi [2020] No. 19

Release Date: 2020.12.29

Implementation Date: 2021.01.01

Timeliness: Current Effective

Changes in this Law

2020-12-29

Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Disputes

(II) (2020 amendment)

Decision of the Supreme People's Court on Amending Eighteen Intellectual Property Judicial Interpretations, including the (II) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Patent Infringement Disputes

2016-03-21

Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement (II)

Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Disputes

(II)

(Adopted at the 1676th meeting of the Judicial Committee of the Supreme People's Court on January 25, 2016, and amended in accordance with the Decision of the Supreme People's Court on Amending the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes and Other Eighteen Intellectual Property Judicial Interpretations adopted at the 1823rd meeting of the Judicial Committee of the Supreme People's Court on December 23, 2020), in accordance with the "the People's Republic of China Civil Code", "the People's Republic of China Patent Law", "the People's Republic of China Civil Procedure Law" and other relevant legal provisions, combined with trial practice, this interpretation is formulated.

Article 1 Where there are two or more claims in a claim, the right holder shall state in the complaint the claim for which the accused infringer is sued for infringement of his patent right. If the complaint does not record this or the record is unclear, the people's court shall require the right holder to clarify it. If, after interpretation, the obligee is still not clear, the people's court may rule to dismiss the prosecution.

Article 2 If the claim claimed by the right holder in the patent infringement lawsuit is declared invalid by the patent administration department of the State Council, the people's court hearing the patent infringement dispute case may rule to reject the right holder's lawsuit based on the invalid claim. If there is evidence to prove that the decision to declare the above-mentioned claims invalid has been annulled by an effective administrative judgment, the right holder may sue separately. If the patentee sues a separate suit, the limitation period shall be calculated from the date of service of the administrative judgment referred to in the second paragraph of this article.

Article 3 If the patent right is requested to be declared invalid due to obvious violation of paragraphs 3 and 4 of Article 26 of the Patent Law, and does not fall under the circumstances stipulated in Article 4 of this interpretation, the people's court hearing the patent infringement dispute case shall generally rule to suspend the litigation; If the patent right has not been declared invalid within a reasonable time limit, the people's court may determine the scope of protection of the patent right according to the record of the claim.

Article 4 The grammar, words, punctuation, graphics, symbols, etc. in the claims, descriptions and drawings are ambiguous, but if a person of ordinary skill in the art can draw a unique understanding by reading the claims, descriptions and drawings, the people's court shall determine it based on that unique understanding.

Article 5 When the people's court determines the scope of protection of a patent right, the technical features recorded in the preamble and characteristic parts of the independent claims, as well as the reference and limited parts of the dependent claims, shall have a limiting effect.

Article 6 The people's court may use other patents and their patent examination files that have a divisional application relationship with the patent involved, and the effective patent authorization confirmation judgment document to interpret the claims of the patent involved. Patent examination files, including the written materials submitted by the patent applicant or patentee in the patent examination, reexamination, and invalidation procedures, the notice of examination opinions produced by the patent administration department of the State Council, the minutes of meetings, the records of oral hearings, the examination decision of the effective patent reexamination request, and the examination decision of the patent invalidation request.

Article 7 Where the accused infringing technical scheme adds other technical features on the basis of all the technical features of the claim for a closed composition, the people's court shall determine that the accused infringing technical scheme does not fall within the scope of protection of the patent right, except where the added technical features are unavoidable regular quantities of impurities. The claims of the closed composition referred to in the preceding paragraph generally do not include the claims of the composition of traditional Chinese medicine. Article 8 The functional features refer to the technical features defined by the functions or effects of the structures, components, steps, conditions or the relationship between them, etc., which are defined by the functions or effects in the invention, except that the specific implementation modes for realizing the above functions or effects can be directly and explicitly determined by those skilled in the art only by reading the claims. Compared with the technical features that are indispensable for realizing the functions or effects mentioned in the preceding paragraph recorded in the specification and attached drawings, the corresponding technical features of the accused infringement technical scheme are basically the same means to realize the same functions and achieve the same effects, and ordinary technicians in the field can associate them without creative labor when the accused infringement occurs, the people's court shall determine that the corresponding technical feature is the same as or equivalent to the functional feature.

Article 9 If the accused infringing technical scheme cannot be applied to the use environment limited by the use environment characteristics in the claim, the people's court shall determine that the accused infringing technical scheme does not fall within the scope of protection of the patent right.

Article 10 If the technical characteristics of the product are defined by the preparation method in the claim, and the preparation method of the accused infringing product is not the same or the same, the people's court shall determine that the accused infringing technical scheme does not fall within the scope of protection of the patent right.

Article 11 Where the method claims do not clearly state the sequence of the technical steps, but those of ordinary skill in the art directly and clearly believe that the technical steps should be implemented in a specific sequence after reading the claims, specifications and drawings, the people's court shall determine that the sequence of the steps has a limiting effect on the scope of protection of the patent right.

Article 12 The claims use terms such as "at least" and "no more than" to define numerical features, and after reading the claims, specifications and drawings, ordinary technicians in the field think that the Fang Daling case of patented technology emphasizes the limiting effect of the term on technical features, and the people's court does not support the claim that different numerical features belong to equivalent features.

Article 13 If the right holder proves that the patent applicant or patentee's restrictive modification or statement to the claim, specification and drawings in the patent authorization confirmation procedure has been explicitly denied, the people's court shall determine that the modification or statement has not led to the abandonment of the technical solution.

Article 14 When determining the knowledge level and cognitive ability of the general consumer regarding the design, the people's court shall generally consider the design space of the same or similar type of product to which the authorized design belongs at the time of the alleged infringement. If the design space is large, the people's court may determine that the general consumer is usually less likely to notice the smaller difference between different designs; if the design space is small, the people's court may determine that the general consumer is usually more likely to notice the smaller difference between different designs.

Article 15 For a design patent for a complete set of products, if the accused infringing design is the same as or similar to one of its designs, the people's court shall determine that the accused infringing design falls within the scope of protection of the patent right.

Article 16 For the design patent of the component product with the only assembly relationship, if the accused infringing design is the same or similar to the design in its combined state, the people's court shall determine that the accused infringing design falls within the scope of protection of the patent right. For the design patent of a component product with no assembly relationship or unique assembly relationship between each component, if the accused infringing design is the same or similar to the design of all its individual components, the people's court shall determine that the accused infringing design falls within the scope of protection of the patent right. The accused infringing design lacks the design of its individual components or is different or not similar to it, the people's court shall determine that the alleged infringing design does not fall within the scope of protection of the patent right.

Article 17 For the design patent of a product in a changing state, if the accused infringing design is the same or similar to the design in various states of use shown in the changing state diagram, the people's court shall determine that the accused infringing design falls within the scope of protection of the patent right. If the accused infringing design lacks one of its designs in use or is different from or not similar to it, the people's court shall determine that the alleged infringing design does not fall within the scope of protection of the patent right.

Article 18 Where the obligee, in accordance with Article 13 of the Patent Law, applies to the entity or individual that implements the invention during the period from the publication date of the application for a patent for invention to the date of the announcement of the authorization, the people's court may make a reasonable determination with reference to the relevant patent licensing fee. If the scope of protection requested by the applicant at the time of publication of the invention patent application is inconsistent with the scope of patent protection at the time of publication of the invention patent, and the sued technical scheme falls within the above two ranges, the people's court shall determine that the defendant has implemented the invention within the period mentioned in the preceding paragraph; if the sued technical scheme falls within only one of the ranges, the people's court shall determine that the defendant has not implemented the invention within the period mentioned in the period mentioned in the preceding paragraph. After the invention patent announcement is authorized, without the permission of the patentee, the people's court will not support the obligee's claim that the above-mentioned use, promise to sell or sell products that have been manufactured, sold or imported by others within the period mentioned in the first paragraph of this article, and the other person has paid or promised in writing to pay the appropriate fees stipulated in Article 13 of the Patent Law.

Article 19 Where a contract for the sale and purchase of a product is established in accordance with the law, the people's court shall determine that it is a sale as provided for in Article 11 of the Patent Law.

Article 20 Where a subsequent product obtained by further processing or treatment of a product directly obtained by a patented method is reprocessed or treated, the people's court shall determine that it does not belong to the "use of the product directly obtained by the patented method" as stipulated in Article 11 of the Patent Law ".

Article 21 Knowing that the relevant products are materials, equipment, spare parts, intermediates, etc. specially used for the implementation of patents, the people's court shall support the infringement of patent rights by providing the products to others for the purpose of production and business without the permission of the patentee. Knowing that the relevant product or method has been granted a patent right, and without the permission of the patentee, actively inducing others to infringe the patent right for the purpose of production and operation, the obligee claims that the inducer's behavior belongs to the civil code 1,169 article abetting others to commit infringement, the people's court shall support it.

Article 22 With respect to the defense of the prior art or the defense of the existing design claimed by the alleged infringer, the people's court shall define the prior art or the existing design in accordance with the Patent Law in force on the date of the patent application.

Article 23 If the accused infringing technical scheme or design falls within the scope of protection of the patent right involved in the case, and the accused infringer plead not to infringe the patent right involved on the ground that the technical scheme or design has been granted a patent right, the people's court shall not support it.

Article 24 If a recommended national, industrial or local standard expressly indicates the information of the essential patent involved, and the accused infringer defends that the patent right is not infringed on the ground that the implementation of the standard does not require the permission of the patentee, the people's court generally does not support it. The recommended national, industrial or local standards clearly indicate the information of the necessary patents involved. When the patentee and the accused infringer negotiate the licensing conditions of the patent, the patentee intentionally violates the fair, reasonable and non-discriminatory licensing obligations promised in the standard formulation, resulting in the failure to reach the patent licensing contract, and the accused infringer has no obvious fault in the negotiation, for the claim of the obligee requesting to stop the standard implementation behavior, people's courts generally do not support.

The licensing conditions referred to in the second paragraph of this article shall be determined by the patentee and the accused infringer through consultation. If no agreement can be reached after full consultation, the people's court may be requested to make a determination. When determining the above-mentioned licensing conditions, the people's court shall, in accordance with the principles of fairness, reasonableness and non-discrimination, comprehensively consider the degree of innovation of the patent and its role in the standard, the technical field to which the standard belongs, the nature of the standard, the scope of implementation of the standard and relevant licensing conditions and other factors. Where laws and administrative regulations provide otherwise for patents in the implementation standards, such provisions shall prevail.

Article 25 Where a patent infringing product is used, promised to be sold or sold for the purpose of production and business operation without knowing that it is manufactured and sold without the permission of the patentee, and the evidence proves that the product is of legal origin, the people's court shall support the claim of the obligee requesting to stop the above-mentioned use, promised to be sold or sold, unless the user of the accused infringing product proves that he has paid reasonable consideration for the product.

The term "not knowing" as mentioned in the first paragraph of this Article means not actually knowing and not supposed to know.

The term "legitimate source" as mentioned in the first paragraph of this article refers to the acquisition of products through legitimate sales channels, usual sales contracts and other normal commercial means. For legitimate sources, users, promising sellers or sellers should provide relevant evidence that is consistent with trading habits.

Article 26: If the defendant constitutes an infringement of the patent right, and the obligee requests an order to stop the infringement, the people's court shall support it, but based on the consideration of national interests and public interests, the people's court may not order the defendant to stop the accused. Act, and order it to pay the corresponding reasonable expenses.

Article 27 If it is difficult to determine the actual losses suffered by the obligee as a result of the infringement, the people's court shall, in accordance with the provisions of paragraph 1 of Article 65 of the Patent Law, require the obligee to provide evidence on the benefits obtained by the infringer due to the infringement. Under the circumstances that the obligee has provided preliminary evidence of the benefits obtained by the infringer and the books and information related to the patent infringement are mainly in the infringer, the infringing, the people's possession, the people's court may order; if the infringer refuses to provide or provides false account books or materials without justifiable reasons, the people's court may determine the benefits obtained by the infringer as a result of the infringement on the basis of the claim of the right holder and the evidence provided.

Article 28 If the obligee or infringer agrees on the amount of compensation for patent infringement or the method of calculation of compensation in accordance with the law, and claims to determine the amount of compensation in accordance with the agreement in the patent infringement lawsuit, the people's court shall support it.

Article 29 After the decision to declare the patent right invalid is made, the parties apply for a retrial in accordance with the decision and request the cancellation of the patent infringement judgment or mediation statement made by the people's court but not executed before the patent right is declared invalid, the people's court may rule to suspend the retrial review and suspend the execution of the original judgment or mediation statement.

If the patentee provides sufficient and effective guarantee to the people's court and requests the continuation of the execution of the judgment or mediation statement referred to in the preceding paragraph, the people's court shall continue to execute it; if the infringer provides sufficient and effective counter-guarantee to the people's court and requests the suspension of execution, the people The court shall grant permission. If the effective judgment of the people's court does not revoke the decision to invalidate the patent right, the patentee shall compensate the other party for the losses caused by the continued execution; if the decision to invalidate the patent right is revoked by the effective judgment of the people's court and the patent right is still valid, the people's court may directly enforce the above-mentioned counter-guarantee property in accordance with the judgment and mediation statement mentioned in the preceding paragraph.

Article 30 If the decision to declare the patent right invalid is not brought to the people's court within the statutory time limit, or the decision is not revoked by the effective judgment after the lawsuit, the party concerned shall apply for a retrial in accordance with the decision and request the revocation of the patent infringement judgment or mediation statement made by the people's court but not executed before the patent right is declared invalid, the people's court shall retry it. In accordance with the decision, if the parties apply for the termination of the execution of the patent infringement judgment or mediation statement made by the people's court but not executed before the patent right is declared invalid, the people's court shall rule to terminate the execution.

Article 31 This Interpretation shall come into force as of April 1, 2016. If the relevant judicial interpretations previously issued by the Supreme People's Court are inconsistent with this Interpretation, this Interpretation shall prevail.