Legislation
The Patent Law is enacted to protect the legitimate rights of patentees, to encourage inventions-creations, to advance the exploitation of inventions-creations, to enhance innovation capability, and to promote the progress of science and technology and the development of economy and society.
Patent Law & Implementing Regulations
Patent Law: Adopted by the Standing Committee of National People's Congress on March 12, 1984 and entering into force on April 1, 1985, amended for the first time on September 4, 1992 and entering into force on January 1, 1993, amended for the second time on August 25, 2000 and entering into force on July 1, 2001, amended for the third time on December 27, 2008 and entering into force on October 1, 2009, amended for the fourth time on October 17, 2020 and entering into force on June 1, 2021.
Implementing Regulations: Promulgated by the State Council on January 19, 1985 and entering into force on April 1, 1985; revised on December 21, 1992 and entering into force on January 1, 1993; and repealed on July 1, 2001. Promulgated on June 15, 2001 and entering into force on July 1, 2001, revised for the first time on December 28, 2002 and entering into force on February 1, 2003, revised for the second time on January 9, 2010 and entering into force on February 1, 2010, and revised for the third time on December 11, 2023 and entering into force on January 20, 2024.
China Patent Administration
The China National Intellectual Property Administration (CNIPA) is responsible for the patent work throughout the country. It receives and examines patent applications, and grants patents in accordance with the law.
The local intellectual property offices in provinces, autonomous regions and municipalities directly under the central government are responsible for the administrative work concerning patents in their respective administrative areas.
Types of Patents
Inventions and creations or invention-creations in the China patent law include inventions, utility models, and designs. Accordingly there are three types of patents in China, i.e. invention patents, utility model patents and design patents.
Obtaining a Patent
For obtaining a patent, the right holder of invention-creations may directly submit a patent application to the CNIPA. After examinations, the CNIPA will grant a patent if the conditions for granting a patent are met.
For the details about obtaining a patent before the CNIPA, please see
Outline of CN Patent System_Basics_ Invention,
Outline of CN Patent System_Utility Model,
Outline of CN Patent System_Design.
Patent Rights
After the grant of a patent for invention, except where otherwise provided for in the Patent Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.
After the grant of a patent for utility model, except where otherwise provided for in the Patent Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, for production or business purposes.
After the grant of a patent for design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, offer to sell, sell or import the product incorporating the patented design, for production or business purposes.
Scope of Protection
The scope of protection of a patent for invention shall be determined by its claims. The description and the drawings may be used to interpret the content of the claims.
The scope of protection of a patent for utility model shall be determined by its claims. The description and the drawings may be used to interpret the content of the claims.
The scope of protection of a patent for design shall be determined by the design of the product as shown in the drawings or photographs. The brief specification may be used to interpret the design of the product as shown in the drawings or photographs.
Patent Protection
After being granted a patent, a patentee enjoys the aforementioned patent rights within the scope of protection, which are protected under the Patent Law.
Where another party exploits a patent without the patentee's authorization, it constitutes infringement of the patent, except where otherwise provided for in the Patent Law. Any disputes arising from patent infringement shall be resolved through negotiation between the parties. If the parties are unwilling to negotiate or the negotiation fails, the patentee or interested party may institute a lawsuit in the court (seeking judicial relief) or request the patent administrative department to handle the dispute (seeking administrative relief).
This article will discuss the proceedings for judicial relief.
For seeking administrative relief, please refer to the Outline of China System_Patent Protection via Administrative Relief.
Patent Infringement
Where another party exploits a patent without the patentee's authorization, except where otherwise provided for in the Patent Law, it constitutes infringement on the patent, which includes the following acts:
(1) Making, using, offering to sell, selling, or importing a patented product for production or business purposes without the authorization of the patentee;
(2) Using a patented process and using, offering to sell, selling, or importing a product directly obtained by the patented process, for production or business purposes, without the patentee's authorization; or
(3) Making, offering to sell, selling, or importing the product incorporating a patented design for production or business purposes, without the patentee's authorization.
Determination of Infringement Act
In preparation of litigation documents and response, rights holders or other relevant parties may refer to the following definitions of factors that the court will consider in determining patent infringement.
Offering to sell
Offering to sell refers to the expression of intention to sell products by means of advertising, display in shop windows or exhibition at trade fairs.
Selling
Where a product sales contract is established in accordance with the law, the court shall determine that it constitutes selling as provided for in the Patent Law.
Contributory Infringement
Where a person knows that a certain product is materials, equipment, components, or intermediates specifically for the exploitation of a patent and, without the rights holder's authorization, provides such product to others for the purpose of production or business and the others thereby infringes the patent, and the rights holder claims that the provider's actions constitute assisting others in committing infringement as prescribed in the Civil Code, the court should support the claim.
Inducing Infringement
Where a person, knowing that a product or process is patented, actively induces others to infringe the patent for production or business purposes without the patentee's authorization, and the rights holder claims that the inducer's actions constitute inducing infringement as prescribed in the Civil Code, the court shall support the claim.
Determination of Infringement on Invention/Utility Model Patents
Determining the Scope of Protection
Plaintiff's Claims:
The court shall, based on the claims asserted by the rights holder (plaintiff), determine the scope of protection of a patent in accordance with the provisions of the Patent Law. Where the rights holder modifies its asserted claims before the conclusion of debate in the trial of the first-instance, the court shall approve the modification.
Where the rights holder claims the scope of protection of a patent based on a dependent claim, the court shall determine the scope of protection of the patent based on the additional technical features recited in the dependent claim and the technical features recited in the claims it depends on.
All technical features:
The expression "the scope of protection of an invention or utility model patent is determined by the content of its claims and the description and drawings may be used to interpret the content of the claims" means that the scope of protection of a patent should be determined by the scope of all technical features recited in the claims, including the scope determined by features equivalent to those technical features.
When the court determines the scope of protection of a patent, the technical features described in the preamble and characterizing sections of an independent claim, as well as the reference and limitation sections of dependent claims, all serve as limitations.
Equivalent Features:
Equivalent features refer to features that perform substantially the same function, by substantially the same means, and achieve substantially the same effects as the recited features, and that a person of ordinary skill in the art could have conjured up without engaging in creative effort at the time the alleged infringement occurred.
Description and Drawings:
The court shall determine the content of the claims based on the definition of the claims and the understanding of the claims by persons of ordinary skill in the art after reading the description and drawings.
Where there is ambiguity in the grammar, text, punctuation, graphics, symbols, etc. in the claims, description, and drawings, but a person of ordinary skill in the art can reach a unique understanding after reading the claims, description, and drawings, the court shall make a determination based on that unique understanding.
Patent Examination Files:
The court may interpret the claims based on the description and drawings, relevant claims in the claims, and patent examination files. If the description specifically defines claim terms, the specific definition shall prevail.
The court may interpret the claims of a patent at issue based on other patents that are divisional applications related to the patent at issue, their patent examination files, and effective judgments related to the grant and confirmation of the relevant patents.
Patent examination files include written materials submitted by patent applicants or patentees during patent examination, reexamination, and invalidation procedures, office actions issued by the CNIPA, meeting minutes, oral hearing minutes, and effective decisions on patent reexamination and invalidation proceedings.
Reference Books:
If the above approaches still cannot clarify the meaning of the claims, interpretation can be conducted in combination with reference books, textbooks, and other publicly known documents, as well as the general understanding by those of ordinary skill in the art.
Functional or Effect Features:
For technical features defined by functions or effects in a claim, the court shall determine the content of the technical features by combining the specific embodiments of the functions or effects described in the description and drawings, as well as equivalent embodiments.
Functional features refer to the technical features that are defined by the functions or effects of structures, components, steps, conditions, or the relationship between them in the invention-creation, unless a person of ordinary skill in the art can directly and clearly determine the specific embodiment for achieving the aforementioned functions or effects simply by reading the claims.
Undescribed Solutions:
Where a patentee attempts to include a technical solution described only in the description or drawings but not recited in the claims in a patent infringement case, the court will not support such inclusion.
Abandoned Solutions:
Where a patent applicant or patentee abandons a technical solution during the patent examination or invalidation proceedings by amending the claims or description or presenting observations, and the rights holder then includes the abandoned technical solution in the scope of the patent in a patent infringement dispute case, the court will not support such inclusion.
Infringement Determination Approach
When determining whether an accused infringing technical solution falls within the scope of a patent, the court shall examine all technical features recited in the claim asserted by the rights holder.
If the accused infringing technical solution contains technical features that are identical or equivalent to all the technical features recited in the claim, the court shall determine that it falls within the scope of the patent.
If the accused infringing technical solution lacks one or more technical features recited in the claim, or if one or more technical features are neither identical nor equivalent to any technical features recited in the claim, the court shall determine that it does not fall within the scope of the patent.
Products Obtained by Patented Processes
The court shall determine that original products obtained by using a patented process constitute products directly obtained by using the patented process as provided for in the Patent Law.
The court shall determine that subsequent products obtained by processing or treating the original products constitute products directly obtained by using the patented process as provided for in the Patent Law.
The court shall determine that products obtained by further processing or treating the subsequent products obtained by processing or treating products directly obtained by using a patented process do not constitute products directly obtained by using the patented process as provided for in the Patent Law.
Infringing Parts and Components
Where the product of an invention or utility model patent is used as a part or component in making another product, the court shall determine that such use constitutes using the patented product as provided for in the Patent Law. Where such another product is sold, the court shall determine that the selling constitutes selling the patented product as provided for in the Patent Law. In such cases, if there is a division of labor or cooperation between the accused infringers, the court shall determine that it is joint infringement.
Provisional Protection
After an invention patent application is published, the applicant may request that the entity or individual that exploited the invention pay appropriate fees.
Where the rights holder requests that the entity or individual that exploited the invention between the date of publication of the invention patent application and the date of grant pay appropriate fees, the court may determine the reasonable fees by referring to relevant patent licensing fees.
Where the scope of protection requested by the applicant at the time of publication of the invention patent application is inconsistent with the scope of protection of the granted patent, and the accused technical solution falls within both of the aforementioned scopes, the court shall determine that the defendant exploited the invention during the period referred to in the preceding paragraph. Where the accused technical solution falls within only one of the aforementioned scopes, the court shall determine that the defendant did not exploit the invention during the period referred to in the preceding paragraph.
After the grant of an invention patent is announced, if, without the authorization of the patentee, a product that has been made, sold or imported by another person during the period referred to in the second paragraph under this Provisional Protection is used, offered to sell or sold for production or business purposes, and such another person has paid or promised in writing to pay the appropriate fees prescribed in the Patent Law, the court shall not support the rights holder's claim that the above-mentioned using, offering to sell or selling infringes the patent.
Determination of Infringement on Design Patents
Infringement Determination Approach
Where an accused design identical or similar to the patented design is adopted on a product of the same or similar type as the product with the design patent, the court shall determine that the accused design falls within the scope of protection of the design patent.
Same or Similar Product Type
The court shall determine whether the types of products are the same or similar based on the intended use of the design product. The determination on the use of the product may make reference to factors such as a brief specification of the design, the International Design Classification, the product's functions, the product's sales and actual use.
Identical or Similar Designs
The court shall determine whether designs are identical or similar based on the knowledge and cognitive abilities of ordinary consumers of the patented design product.
When determining the ordinary consumers' knowledge and cognitive abilities regarding designs, the court shall generally consider the design space of products of the same or similar categories as the patented design at the time the alleged infringement occurred. If the design space is large, the court may determine that the ordinary consumers are generally less likely to notice minor differences between designs. If the design space is small, the court may determine that the ordinary consumers are generally more likely to notice minor differences between designs.
When determining whether designs are identical or similar, the court shall make a comprehensive judgment based on the design features of the patented design and the accused infringing design, and on the overall visual effects of the designs. Design features that are primarily determined by technical functions and features relating to the product's material and internal structure that do not affect the overall visual effect shall not be taken into account.
The following usually have a greater impact on the overall visual effect of a design:
(1) Parts that are easily and directly observed during normal use of the product;
(2) Design features that distinguish the patented design from existing designs.
If there is no difference in the overall visual effect between the accused infringing design and the patented design, the court shall determine that the two are identical; if there is no substantial difference in the overall visual effect, the court shall determine that the two are similar.
Infringing Parts or Components
If a product that infringes a design patent is used as a part of component in making and selling another product, the court shall determine that this constitutes selling under the Patent Law, unless the infringing product merely serves a technical function in such another product. In such case, if there is a division of labor and cooperation between the accused infringers, the court shall determine that it is joint infringement.
Exceptions to infringement
The following circumstances shall not be deemed as patent infringement:
(1) Using, offering to sell, selling or importing a patented product or a product directly obtained by a patented process after it is sold by the patentee or an entity or individual authorized by the patentee;
(2) Having already made the same product, usd the same process, or having made necessary preparations for such making or using before the filing date of the patent, and continuing to make the product or use the process only within the original scope;
(3) Using the relevant patent in the devices and equipment of a foreign transport vehicle that temporarily passes through China's land, territorial waters or airspace for its own needs in accordance with the agreement signed between its country and China or the international treaty both countries have joined, or in accordance with the principle of reciprocity;
(4) Using the relevant patent exclusively for scientific research and experimentation;
(5) Making, using or importing patented drugs or patented medical devices for the purpose of providing information required for administrative approval, as well as making or importing patented drugs or patented medical devices exclusively for such purposes.
Prior Art/Existing Design Defense
In a patent infringement dispute, if the accused infringer has evidence proving that the technology or design they exploit is a prior art or an existing design, their exploitation does not constitute patent infringement.
Where all the accused technical features falling within the scope of the patent are identical or not substantially different from the corresponding technical features in a prior art solution, the court shall determine that the technology exploited by the accused infringer is a prior art as provided for in the Patent Law.
Where the accused infringing design is identical to or not substantially different from an existing design, the court shall determine that the design exploited by the accused infringer is an existing design as provided for in the Patent Law.
Prior use right defense
Item (2) under "Exceptions to Infringement" is a prior use right defense, for which the technology for manufacturing products or using processes, or the designs incorporated in products shall be legally obtained. Where the accused infringer claims a prior use right defense based on illegally obtained technology or design, the court shall not support such claim.
In any of the following circumstances, the court shall determine that the necessary preparations for making or using have been made as stipulated in the Patent Law:
(1) The main technical drawings or process documents necessary for exploiting the invention have been completed;
(2) The main equipment or raw materials necessary for exploiting the invention have been manufactured or purchased.
The original scope stipulated in the Patent Law includes the production scale existing before the filing date of the patent and the production scale that can be achieved by using existing production equipment or based on existing production preparations.
Where the prior user transfers or licenses the technology or design that they have been exploiting or for which they have made necessary preparations for exploitation after the filing date of the patent, and the accused infringer claims that the exploitation behavior is continued within the original scope, the court shall not support it, except where the technology or design is transferred or inherited together with the original enterprise.
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