-
Interpretation by
the Supreme
People’s Court
on Some Issues
Concerning the
Application of Laws to the Trial of Patent
Infringement
Disputes
(Interpretation No. (2009) 21)
(Effective as of January 1,
2010)
In
order
to
facilitate
correct
trial
of
patent
infringement
disputes,
the
present
interpretation
is
made
in
accordance
with
the
Patent
Law
of
the
People’s
Republic
of
China,
the
Civil
Procedure
Law
of
the
People’s
Republic
of
China
and
so
on,
and
in
combination with practical judicial
experience.
Article 1
The
People’s
Court
shall
determine
the
extent
of
protection
of
the
patent
right
in
accordance with Paragraph 1, Article 59
of Patent Law based on the claims asserted by
the patentee. Where the patentee
changes the asserted claims by the end of court
debate
of the first instance, the
People’s Court
shall allow.
Where the patentee requests to
determine the extent of protection of the patent
right based
on a dependent claim, the
People’s Court
shall
determine the extent of protection of the
patent right in accordance with the
additional technical features defined in the
dependent
claim as well as the
technical features defined in the claim(s)
referred to by the dependent
claims.
Article 2
The
People’s Court
shall
determine the content of the claims as provided
under Paragraph
1, Article 59 of Patent
Law based on the wordings of the claims in
consideration of the
understanding of
those skilled in the art to the claims through
reading the specification
and the
drawings.
Article 3
The
People’s
Court
may resort to the specification
and drawings, the relevant claims and
the
prosecution
history
to
interpret
the
claims.
Where
a
terminology
in
the
claims
is
specifically defined in the
specification, the definition shall prevail.
If
the
meaning
of
the
claims
can
not
be
determined
by
the
above-mentioned
means,
it
may be
interpreted in consideration of public known
literature such as reference books,
textbooks and the like as well as the
ordinary understanding by those skilled in the
art.
Article 4
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Where
a
technical
feature
in
claims
is
expressed
in
way
of
functions
or
effects,
the
People’s Court
shall
determine the content of the technical feature in
consideration of the
detailed
embodiments
of
the
functions
or
effects
described
in
the
specification
and
drawings and equivalents thereof.
Article 5
Where a technical
solution is only described in the specification or
drawings other than in
the
claims,
if
the
patentee
asserts
in
a
patent
infringement
lawsuit
that
the
extent
of
protection
of
the
patent
right
should
include
the
technical
solution,
the
People’s
Court
shall not allow.
Article 6
Where
the
patent
applicant
or
patentee
has
abandoned
a
technical
solution
through
amendment
to
claims
and/or
specification
or
observations
during
the
prosecution
or
invalidation process, if
the patentee asserts in a patent infringement
lawsuit that the extent
of protection
of the
patent right should include the
technical solution, the People’s Court
shall not allow.
Article 7
Where the People’s Court judges whether
an accused infringing t
echnical
solution falls
into
the
extent
of
protection
of
a
patent
right,
the
People’s
Court
shall
examine
all
technical features defined in the
claims asserted by the patentee.
Where
the accused infringing technical solution includes
the features that are identical or
equivalent
with
all
the
technical
features
defined
in
a
claim
,
the
People’s
Court
shall
determine that the
accused infringing technical solution falls into
the extent of protection
of the patent
right; where compared with all the technical
features of a claim, the accused
infringing technical solution lacks one
or more technical features of the claim, or one or
more
technical
features
in
the
technical
solution
and
the
asserted
claim
are
neither
identical
nor equivalent,
the People’s Court shall
determine that the accused infringing
technical solution doesn’t fall into
the
extent of protection of the patent
right.
Article 8
Where
a
design
which
is
identical
with
or
similar
to
the
patented
design
is
used
on
a
product which is of an
identical or similar type
to
the design product, t
he People’s Court
shall
determine
that
the
accused
infringing
design
falls
into
the
extent
of
protection
of
design patent right as prescribed in
Paragraph 2, Article 59 of the Patent Law.
Article 9
The People’s Court
sha
ll determine whether the identical
or similar type of product based
on
the
usage
of
the
design
product.
The
usage
of
a
product
may
be
determined
with
2
reference to the brief description of
the design patent, the International
Classification for
Industry Design,
function of the product as well as the
product
’
s sales and actual
usage
and so on.
Article 10
The
People’s
Court
shall
determine
the
identity
or
similarity
of
designs
based
on
the
knowledge level and the
cognitive ability of the ordinary consumers of the
design patent
product.
Article 11
The
People’s Court shall
make a
comprehensive judgment in view of the overall
visual
effects of the design based on
the design feature(s) of the patented design and
the accused
infringing
design
when
determining
the
identity
or
similarity
of
designs.
The
design
features that are
mainly determined by the technical function and
the features that do not
affect the
overall visual effects such as product material,
internal structure and so on shall
not
be considered.
The following factors usually have more
impact on the overall visual effects of a design:
(1)
Parts
that
are
easily
observed
in
the
ordinary
use
state
of
the
product
versus
other
parts of the product;
(2)
Design
features of the patented design distinguishing
from the prior designs versus
other
design features.
The
People’
s
Court
shall
find
the
accused
infringing
design
and
the
patented
design
identical in the absence of difference
in overall visual effects; and find them similar
in the
absence of substantial
difference in overall visual effects.
Article 12
Where
one
uses
a
product
that
infringes
an
invention
or
utility
model
patent
as
a
component to make
another
product, the People’s Court shall
determine the act
as “use”
prescribed
in
Article
11
of
the
Patent
Law;
where
one
sells
the
another
product,
the
People’
s
Court
shall
determine
the
act
as
“
sell
”
prescribed
in
Article
11
of
the
Patent
Law.
Where one uses a product that infringes
a design patent as a component to make another
product as well as sells the
anothe
r product, the People’s Court
shall
determine the act as
“
sell
”
prescribed
in
Article
11
of
the
Patent
Law
with
exception
that
the
product
that
infringes a design patent is merely for
technical function in the another product.
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