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最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释-英文

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2021-02-11 16:45
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2021年2月11日发(作者:adjective)




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



1




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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