Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Infringement of Patent Rights (II) (Issued in 2016, amended in 2020)

Issuing Department: Supreme People's Court

Issue Number：Fa Shi [2020] No.19

Issue Date: 2020.12.29

Implementation date: 2021.01.01

Limitations: Currently in force

Changes in the Law

2020-12-29

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Infringement of Patent Rights

(II) (2020 Amendment)

Decision of the Supreme People's Court on Amending the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws to the Trial of Cases Involving Disputes over Infringement of Patent Rights (II) and Eighteen Other Judicial Interpretations of Intellectual Property Type

2016-03-21

Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Cases of Disputes over Infringement of Patent Rights

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws to the Trial of Cases of Disputes over Infringement of Patent Rights

(II)

(Adopted at the 1676th meeting of the Trial 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 Laws to the Trial of Cases of Disputes over Infringement of Patent Rights (II)," and other eighteen intellectual property-type judicial interpretation," adopted at the 1823rd meeting of the Trial Committee of the Supreme People's Court on December 23, 2020) (Amended) The Interpretation is formulated in accordance with the Civil Code of the People's Republic of China, the Patent Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other relevant laws and regulations, and in conjunction with the practice of adjudication for the purpose of correctly adjudicating cases of disputes over infringement of patent rights.

Article 1 Where there are two or more claims in the statement of claim, the right holder shall state in the statement of claim the claims on which the accused infringer is sued for infringement of his patent right. The statement of claim is not recorded or recorded unclear, the people's court shall require the right to clarify. After the explanation, the right holder is still not clear, the people's court may decide to dismiss the lawsuit.

Article 2 If the claim asserted by the right holder in the patent infringement litigation is declared invalid by the patent administrative department under the State Council, the people's court hearing the dispute over the infringement of the patent right may decide 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 claim invalid has been revoked by the effective administrative judgment, the right holder may file a separate lawsuit. If the patentee sues separately, the limitation period shall be calculated from the date of service of the administrative judgment referred to in Paragraph 2 of this Article.

Article 3 Where the patent right is requested to be declared invalid due to obvious violation of Article 26(3) and (4) of the Patent Law, which results in the specification not being able to be used for the interpretation of the claims and does not belong to the circumstances stipulated in Article 4 of this Explanation, the people's court hearing the case of dispute over infringement of the patent right shall, in general, rule that the litigation is to be suspended; and where the patent right has not been requested to be declared invalid within a reasonable period of time, the people's court can, based on the records of the claims The people's court may determine the scope of protection of the patent right according to the records of the claims.

Article 4 Where there are ambiguities in the grammar, words, punctuation, graphics and symbols in the claims, specification and accompanying drawings, but a person of ordinary skill in the field can arrive at a unique understanding by reading the claims, specification and accompanying drawings, the people's court shall make a determination on the basis of such unique understanding.

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

Article 6 The people's court may use the other patents and patent examination files of other patents with which the patent in question has a sub-filing relationship, as well as the effective judgment of patent authorization to interpret the claims of the patent in question. Patent examination files, including patent examination, re-examination, invalidation proceedings in the patent applicant or the patentee to submit written materials, the patent administrative department under the state council for the examination of the notice of opinion, meeting records, records of the oral hearing, the effective review of the patent review request for review decision and the invalidation of the patent right request for review decision.

Article 7 Where the accused infringing technical solution adds other technical features on the basis of including all technical features of the claims of the closed combination, the people's court shall determine that the accused infringing technical solution does not fall within the scope of protection of the patent right, except that the added technical features are unavoidable conventional quantitative impurities. The closed combination claims referred to in the preceding paragraph generally do not include the Chinese medicine combination claims. Article 8 Functional feature means a technical feature that qualifies a structure, component, step, condition, or relationship therebetween, etc., by the function or effect it plays in the invention-creation, except that a person of ordinary skill in the art can directly and unambiguously ascertain the specific embodiment for realizing the aforesaid function or effect merely by reading the claims. Compared with the technical features recorded in the specification and accompanying drawings which are indispensable for realizing the function or effect referred to in the preceding paragraph, if the corresponding technical features of the technical solution of the alleged infringement are basically the same means to realize the same function and achieve the same effect, and if the person of ordinary skill in the field can associate them without creative labor at the time of the alleged infringement, the people's court shall determine that the corresponding technical features are the same as or equivalent to the Functional features are the same or equivalent.

Article 9 Where the allegedly infringing technical program cannot be applied to the environment limited by the environmental features in the claim, the people's court shall determine that the allegedly infringing technical program does not fall within the scope of protection of the patent right.

Article 10 For the claim defines the technical characteristics of the product by the preparation method, the people's court shall determine that the infringing technical solution does not fall within the scope of protection of the patent if the preparation method of the infringing product is not the same as or equivalent to the infringing product.

Article 11 If the method claim does not clearly record the sequence of technical steps, but the ordinary technical person in the field directly and clearly believes that the technical steps should be implemented in a specific order after reading the claim, specification and accompanying drawings, the people's court shall determine that the order of the steps has a limiting effect on the scope of protection of the patent right.

Article 12 The claim defines the numerical features by the terms of "at least" and "not more than", and the person of ordinary skill in the field, after reading the claim, the specification and the accompanying drawings, considers that the Patent Technology Fangda Ling Case has particularly emphasized the limiting effect of the terms on the technical features, and the right holder claims that it is not the same as it is, and the people's court shall determine that the technical steps should be implemented in a specific order. The People's Court shall not support the claim of the right holder that the numerical features which are not the same as his are equivalent features.

Article 13 Where the right holder proves that the patent applicant or the patentee's limiting modification or statement of the claims, specification and accompanying drawings in the patent authorization and 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 scheme.

Article 14 The people's court shall, in determining the level of knowledge and cognitive ability of the average consumer in relation to the design, generally take into account the design space of the same or similar type of product to which the authorized design belonged at the time of the infringement. If the design space is larger, the people's court may determine that the average consumer is usually not easy to notice the smaller differences between different designs; if the design space is smaller, the people's court may determine that the average consumer is usually easier to notice the smaller differences between different designs.

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

Article 16 for the assembly relationship of the only components of the product design patent, the infringing design and its combination of the same or similar design, the people's court shall find that the infringing design falls within the scope of protection of the patent right. For the design patent of a component product which has no assembly relationship between the components or the assembly relationship is not unique, if the infringing design is identical or similar to the design of all its individual components, the people's court shall determine that the infringing design falls within the scope of protection of the patent right; if the infringing design lacks the design of the individual components, or is not the same as or similar to the design, the people's court shall determine that the infringing design does not fall within the scope of protection of the patent right. The people's court shall hold that the infringing design does not fall within the scope of protection of the patent right.

Article 17 For a design patent for a product in a state of change, if the infringing design is identical or similar to the designs in various states of use as shown in the diagram of the state of change, the people's court shall determine that the infringing design falls within the scope of protection of the patent right; if the infringing design lacks the design in one of the states of use, or is not the same as or similar to the design in one of the states of use, the people's court shall determine that the infringing design does not fall within the scope of protection of the patent right. The people's court shall find that the infringing design does not fall within the scope of protection of the patent right.

Article 18 Where the right holder sues, pursuant to Article 13 of the Patent Law, for payment of appropriate fees by the unit or individual who implemented the invention during the period between the publication of the invention patent application and the date of the notice of authorization, the people's court may make a reasonable determination with reference to the relevant patent licensing royalty. The scope of protection requested by the applicant at the time of publication of the invention patent application and the scope of protection of the patent right at the time of authorization of the invention patent notice are inconsistent, and if the technical solutions sued fall into the above two scopes, the people's court shall determine that the defendant has implemented the invention within the period referred to in the preceding paragraph; if the technical solutions sued fall into only one of the scopes, the people's court shall determine that the defendant has not implemented the invention within the period referred to in the preceding paragraph. After the invention patent announcement is authorized, without the permission of the patentee, for the purpose of production and management, using, promising to sell, selling, and importing the products which have been manufactured, sold, or imported by another person within the period referred to in the first paragraph of this Article, and that other person has paid or has promised in writing to pay the appropriate fees as stipulated in Article 13 of the Patent Law, for the claim of the right holder that the aforesaid acts of using, promising to sell, or selling infringes upon the patent right, the people's court shall not The people's court shall not support.

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

Article 20 For the further processing and treatment of the products obtained directly according to the patented method and the subsequent products obtained by further processing and treatment, the people's court shall determine that it does not belong to the "use of the products obtained directly according to the patented method" as stipulated in Article 11 of the Patent Law.

Article 21 Where, knowing that the product in question is a material, equipment, component, intermediate, etc., specially used for the implementation of the patent, the people's court shall support the claim of the right holder that the act of providing the product to another person for the purpose of production and management is an act of infringement of the patent right if the right holder claims that the act of providing the product belongs to the category of assisting another person in committing the act of infringement as stipulated in Article 1169 of the Civil Code. Where a right holder, knowing that the product or method concerned has been granted a patent right, actively induces another person to commit an act of infringement of the patent right for the purpose of production and business without the permission of the patent owner, and the people's court shall support the right holder's claim that the act of such inducer is an act of abetting another person to commit an act of infringement as stipulated in Article 1169 of the Civil Code.

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

Article 23 The people's court shall not support the defense of not infringing the patent right in question on the ground that the infringer's technical solution or design falls within the scope of protection of the prior patent right in question, and the people's court shall not support the defense of not infringing the patent right in question on the ground that the technical solution or design has been granted a patent.

Article 24 Recommended national, industrial or local standards expressly necessary patent information, the infringer to implement the standard without the patentee's permission to defend against infringement of the patent, the people's courts generally do not support. If the recommended national, industrial or local standards expressly provide information on the necessary patents involved, and when the patentee and the infringer are negotiating the licensing conditions for the implementation of the patent, the patentee intentionally violates the fair, reasonable and non-discriminatory licensing obligations promised in the formulation of the standard, resulting in the failure to reach a patent license contract, and the infringer is not at fault during the negotiation, the People's Court generally shall not support the claim of the right holder to stop the implementation of the standard. The people's court shall not support the claim of the right holder to stop the standard implementation behavior.

The conditions for the implementation of the license referred to in paragraph 2 of this Article shall be determined by the patentee and the alleged infringer through consultation. If no agreement can be reached after full consultation, the people's court may be requested to determine them. The people's court, in determining the above implementation license conditions, shall, in accordance with the principles of fairness, reasonableness and non-discrimination, give comprehensive consideration to 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 the implementation of the standard and the relevant licensing conditions and other factors. Laws and administrative regulations on the implementation of the patent in the standard otherwise provided for, shall be subject to its provisions.

Article 25 For the purpose of production and management of the use, promise to sell or sell do not know is not the patentee's license to manufacture and sell the patent infringing products, and adduce evidence to prove that the legal source of the product, for the right to request the cessation of the above use, promise to sell, sell the behavior of the people's court shall support the request, but the user of the infringing products adduce evidence to prove that it has paid the reasonable consideration for the product.

The term "not knowing" referred to in the first paragraph of this Article means actually not knowing and should not know.

The legal source referred to in Paragraph 1 of this Article means that the products are obtained through normal commercial means such as lawful sales channels and usual sale and purchase contracts. With respect to the lawful source, the user, the person who promises to sell or the seller shall provide relevant evidence in line with the trading habits.

Article 26 Where the defendant constitutes an infringement of the patent right, and the right holder requests to be ordered to stop the infringing act, the people's court shall support the request; however, based on the consideration of national interest and public interest, the people's court may not order the defendant to stop the act being sued for, but rather order the defendant to pay the corresponding reasonable costs.

Article 27 Where the actual loss suffered by the right holder due to the infringement is difficult to be determined, the people's court shall, in accordance with the provisions of Article 65(1) of the Patent Law, require the right holder to adduce evidence of the benefit gained by the infringer due to the infringement; in the case that the right holder has already provided the prima facie evidence of the benefit gained by the infringer and the books and information relating to the infringement of the patent are mainly in the hands of the infringer, the people's court may order the The infringer to provide the books and information; if the infringer refuses to provide or provides false books and information without justifiable reasons, the people's court may, according to the claim of the right holder and the evidence provided to determine the infringer's benefits gained from the infringement.

Article 28 If the right holder and the infringer agree on the amount of compensation for patent infringement or the method of calculation of compensation according to law, and claim to determine the amount of compensation based on such agreement in the patent infringement litigation, the people's court shall support such agreement.

Article 29 After the decision to declare a patent invalid, the party concerned applies for retrial according to the decision, and requests to revoke the judgment or conciliation of patent infringement made by the people's court before the declaration of invalidity of the patent but not yet enforced, the people's court may decide to suspend the retrial review, and suspend the enforcement of the original judgment or conciliation.

The patentee to the people's court to provide adequate and effective security, requesting the continuation of the implementation of the judgment and conciliation referred to in the preceding paragraph, the people's court shall continue to implement; infringer to the people's court to provide adequate and effective counter-guarantee, requesting suspension of the implementation of the people's court shall be permitted. The people's court effective decision not to revoke the decision to declare the patent right invalid, the patentee shall compensate for the losses caused by the continuation of enforcement to the other party; the decision to declare the patent right invalid by the people's court effective decision to revoke the patent right is still valid, the people's court may be based on the judgment and conciliation referred to in the preceding paragraph, the direct implementation of the counter-guarantee of the above property.

Article 30 If the decision on invalidating the patent right is not sued to the people's court within the statutory period or the effective decision is not revoked after suing, and the party concerned applies for a retrial according to the decision according to law, requesting to revoke the judgment or conciliation of patent infringement made by the people's court before invalidating the patent right but not yet enforced, the people's court shall retry the case. Where the party applies for the termination of the execution of the judgment or conciliation of patent infringement made by the people's court before declaring the patent right invalid but not yet executed according to law based on the decision, the people's court shall rule that the execution shall be terminated.

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