The "JudicialInterpretation of the Supreme People's Court concerning the Applicability ofthe Laws in Patent Infringement Cases" was passed at the 1480th meeting ofthe Supreme Court Case Hearing Committee on 21 December 2009 and is hereby promulgatedwith effect on 1 January 2010.
 
To fairly hear patentinfringement cases, this Judicial Interpretation is formulated in compliancewith the "Patent Law of the People's Republic of China", "CivilProceedings Law of the People's Republic of China" and other relevantstatutory provisions for the actual needs of hearing.


Article 1  The people's court shall determine the scopeof patent protection based on the rights claimed by the right owners underArticle 59 (i) of the Patent Law. The people's court shall permit the rightowners to alter the claims for their rights before the end of the court debateat first instance.


Where a right ownerwishes to determine the scope of patent protection by the request for theattached rights, the trialing people's court shall determine the scope ofpatent protection by the additional technical features recorded in the requestfor the attached rights as well as the technical features recorded in therelated request for the rights.
 
Article 2 The people's courts shall determine the contents in the requestfor the rights under Article 59 (i) of the Patent Law based on the records inthe request for the rights in question in conjunction with the understanding ofthe request for the rights by a reasonable technician in the same area afterreading the related descriptions and drawings.


Article 3 The people's courts may interpret the requests for the rights byconsulting the related descriptions and drawings, the rights claimed in therequest and patent assessment documentations. Where definitions of specificterms are provided in the related descriptions, such definitions must be used.
 
Where the request for the rights cannot be determined in the manners asspecified above, such request may be determined by consulting tool books, textbooks and other open documents as well as the reasonable understanding of areasonable technician in the same area.
 
Article 4 Where in a request for the rights thetechnical features are expressed in terms of functions and effects, thetrialing people’s court shall determine the contents of the technical featuresby considering the actual implementation and methods for the implementation ofsuch functions and effects as expressed in the related descriptions anddrawings.


Article 5 Where in a patent infringement case theright owner intends to include a technical proposal into the scope of patentprotection that is only expressed in the related descriptions or drawings butnot recorded in the request for the rights, the trialing people’s court shallnot accept such inclusion.


Article 6 Where a patent applicant or patentright owner in the patent authorization or invalidation process gives up atechnical proposal by expression in the request for the rights, amendments tothe related descriptions or representation but intends to include suchtechnical proposal into the scope of patent protection in a patent infringementcase, the trialing people’s court shall not accept such inclusion.


Article 7 In determining whether the allegedinfringing technical proposal falls within the scope of patent protection, thetrialing people’s court shall examine all the technical features recorded inthe right owner’s request for the rights.
 
Where the alleged infringing technical proposalincludes all the technical features expressed in or identical to thoseexpressed in the request for the rights, the trialing people’s court shallconclude that such technical proposal falls within the scope of patentprotection. Where in comparing the all the technical features in the allegedinfringing technical proposal with all those in the request for the rightsthere is at least one technical feature is not expressed in or not identical tothose expressed in the request for the rights, the trialing people’s courtshall conclude that such technical proposal does not fall within the scope of patent protection.

 

Article 8 Where on the products identical orsimilar to the products that a patented design is used the alleged design isidentical or similar to such the authorized design, the trialing people’s courtshall conclude that the alleged design falls within the scope of design protectionunder Article 59 (ii) of the Patent Law.

 

Article 9 The trialing people’s court shalldetermine whether the products in question are identical or similar byexamining the purposes of the product on which the patented designed is used.To determine the purposes of such product, the brief description of the designin question, international design categories, product’s functions, sale andactual use of the product in question and other factors must be considered.

 

Article 10 The trialing people’s court shalldetermine whether the patented design and alleged design are identical orsimilar in the view of the knowledge and awareness of the general consumers ofthe product on which the patented design is used.

 

Article 11 In determining whether the designs areidentical or similar, the trialing people’s court shall make the conclusion byexamining the overall visual effect of the designs in question based on thefeatures of the authorized design and alleged infringing design. The featuresare mainly based on the technical functions or the raw materials, interiorstructure or other features do not affect the overall visual effect will not beconsidered.
 
The following factors are generally deemed tohave more effect on the overall visual effect of a design:
 
(i) Certain part is more observable than theother in general use of the product in question;
 
(ii) The existing design features of theauthorized design is distinctive in comparison with other design features ofthe authorized design.
 
Where the overall visual effect of the allegedinfringing design is indifferent from that of the authorized design, thetrialing people’s court shall conclude that they are identical. Where theoverall visual effects of the alleged infringing design and authorized designare not materially different, it will be concluded that they are similar.

 

Article 12 Where components of a product thatinfringes a patent on an invention or utility model are used in manufacturinganother product, the trialing people’s court shall conclude such activity fallswithin the scope of Article 11 of the Patent Law. For sale of such anotherproduct, the trialing people’s court shall conclude that such sale amounts tothe sale activity provided in Article 11 of the Patent Law.
 
For manufacturing and selling another productwhich is made with the components of a product that infringes a patenteddesign, the trialing people’s court shall conclude that such activity amountsto the sale activity provided in Article 11 of the Patent Law, except such theinfringing product has technical functions in such another product.
 
Where, in the events specified in the previoustwo paragraphs, the alleged infringers work together, the trialing people’scourt shall impose joint liability.

 

Article 13 The original products which areacquired by use of patented methods will be recognized by the people’s courtsas the products directly acquired by such patented methods under Article 11 ofthe Patent Law.
 
Products which are subsequently acquired afterfurther processing or handling the original products as specified above will berecognized by the people’s courts as the products directly acquired by use ofsuch patented methods under Article 11 of the Patent Law.

 

Article 14 Where all the alleged technicalfeatures fall within the scope of patent protection and are identical to orwithout material difference from one of the corresponding technical features inan existing technical proposal, the trialing people’s court shall conclude thatthe technologies applied by the alleged infringer are the existing technologiesunder Article 62 of the Patent Law.
 
Where the alleged infringing design is identicalto or without material difference from an existing design, the trialingpeople’s court shall conclude that the design used by the alleged infringer isthe existing design under Article 62 of the Patent Law.
 
Article 15 Where an alleged infringer in thedefence argues for the anticipatory rights of a technology or design that isillegally acquired, the trialing people's shall not accept such argument.
 
In one of the following events, the trialingpeople's court shall conclude that "the necessary preparations forproduction or use" as provided under Article 69 (ii) of the Patent Law aremade:
 
(i) the key technical drawings or processingdocuments that are needed in creating the invention in question have beencompleted;
 
(ii) the key equipment or raw materials that isor are needed in creating the invention in question has or have been made orpurchased.
 
The scope originally provided under Article 69(ii) of the Patent Law includes the production scale existing already beforethe patent application date as well as the production scale that can beestablished with the existing production equipment or existing productionpreparations.
 
In the event that after the patent applicationdate an owner of an anticipatory right already transfers or licenses anotherparty the technology or design that the owner has already applied or madepreparations to apply and that the alleged infringer argues that suchapplication falls within the original scope of application, the trialing people'scourt shall not accept such argument, except that the technology or design inquestion is transferred or succeeded together with the original enterprise.
 
Article 16 The trialing people's court whichconcludes in reliance on Article 65 (i) of the Patent Law that the infringer inquestion has gained benefit from the alleged infringement shall determine theamount of such benefit to the extent limit to the benefit from the patentinfringement in question. Other benefit gained from infringing other rightswill be reasonably deducted.
 
Where a product infringing a patent on aninvention or utility model is a component of another product, the trialingpeople's court shall determine reasonable damages by considering the value ofthe component itself, profit from the finished product in question and otherfactors.
 
Where a product infringing a design right is apackage, the trialing people's court shall determine reasonable damages byconsidering the value of the package itself, profit from the product inside thepackage in question and other factors.

 

Article 17 Where a product or the technical planfor manufacturing such product is made known to the public before the patentapplication date, the trialing people's court shall conclude that the productin question is not a new product as provided under Article 61 (i) of the PatentLaw.

 

Article 18 In the event that a proprietor sends acease and desist letter to another party and the recipient or interested partyreply the proprietor in writing requesting the proprietor to exercise the rightto claim but the proprietor does not revoke such cease and desist letter orfails to commence legal proceedings within one month after receiving suchwritten reply or two months after such written reply is sent and that therecipient or interested party commences proceedings at the people's court requestingthat the alleged act of the recipient or interested party should be deemed tobe not an infringement, the trialing people's court shall accept such request.

 

Article 19 For alleged infringements committedbefore 1 October 2009, the people's courts shall apply the Patent Law beforethe amendments. For alleged infringements committed after 1 October 2009, thepeople's courts shall apply the amended Patent Law.
 
In the event that an alleged infringement iscommitted before 1 October 2009 and continues to exist after 1 October 2009 andthat the infringer is held liable under the Patent Law before and after theamendments, the trialing people's court shall determine damages in reliance onthe amended Patent Law.

 

Article 20 Should there be any inconsistencebetween this Judicial Interpretation and any other judicial interpretationsissued by this Court, this Judicial Interpretation shall prevail.

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