Interpretations of the Supreme People's Court on Certain Issues Concerning the Application of Law in the Trial of Patent Infringement Cases
 
(Adopted at the 1480th Session of the Trial Committee of the Supreme People's Court on December 21, 2009)
 
These Interpretations are formulated 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 other relevant laws and regulations and by taking into account the trial practice for the purpose of correctly prosecuting patent infringement cases.
 
Article 1    People's courts shall, based on the claim of the right-owner, determine the scope of patent protection in accordance with the provisions of Paragraph 1 of Article 59 of the Patent Law. If the right-owner alters his claim before the end of the first-instance court debate, the people's court shall permit such alteration.
 
Where a right-owner alleges to determine the scope of patent protection based on a dependent claim, the people's court shall determine the scope in accordance with the additional technical features stated through the dependent claim and technical features stated by any claim referred to.
 
Article 2    The people's court shall, according to what is stated in the claim and by taking into account what the person of ordinary skill in the art comprehends of the claim through a reading of the specification and drawings, determine the content of the claim specified in Paragraph 1 of Article 59 of the Patent Law.
 
Article 3    The people's court may use the specification, drawings, relevant claim in the written claims, and patent examination files to explain the claim. If the specification has specifically defined the terms of the claim, such special definitions shall prevail.
 
If the meaning of a claim still cannot be determined by the aforesaid method, the court may explain such claim by taking into account reference books, textbooks, other well-known documents and the general understanding of persons of ordinary skill in the art.
 
Article 4    If a claim states the technical features in terms of functions or effects, the people's court shall determine the content of the technical features by taking into account the specific method to exploit such functions or effects as described in the specification and drawings or any equivalent method.
 
Article 5    With respect to a technical plan that is only described in the specification or drawings but not stated in the claim, if the right-owner alleges to include such technical plan into the scope of patent protection in the patent infringement case, the people's court shall not uphold such allegation.
 
Article 6    During the process of granting patent or declaring patent invalid, if the patent applicant or patentee relinquishes a technical plan through modifications to the claim or specification or by statement, but the right-owner alleges in the relevant patent infringement case that the said technical plan falls under the scope of patent protection, the people's court shall not uphold such allegation.
 
Article 7    Where a people's court makes a judgment of whether or not the accused infringing technical plan falls under the scope of patent protection, it shall examine all the technical features stated in the claim alleged by the right-owner.
 
If the accused infringing technical plan includes features that are identical with or equivalent to all the technical features stated in the claim, the people's court shall determine that such technical plan falls under the scope of patent protection. If the said technical plan, as compared with all the technical features of the claim, lacks one or more technical features stated in the claim, or one or more of its technical features are not identical or equivalent to those stated in the claim, the people's court shall determine that the said technical plan does not fall under the scope of patent protection.
 
Article 8    Where a design identical or similar to the patented design is used on a product in the same or similar category of a design patent product, the people's court shall determine that the accused infringing design falls under the scope of protection for a design patent as prescribed in Paragraph 2 of Article 59 of the Patent Law.
 
Article 9    The people's court shall determine whether or not design products belong to same or similar categories according to the functions of such products. To determine the functions of a product, the international classification of designs, the name and functions of such product as stated in the specification, and the sales, actual usage, and other factors of the product can be taken into consideration.
 
Article 10    The people's court shall determine whether or not designs are similar or identical according to the knowledge and cognitive ability of ordinary consumers of the design patent products.
 
Article 11    The people's court shall decide on whether designs are identical or similar according to the overall visual effect of such designs and by taking into account the design features of the patented design and the accused infringing design. However, design features determined by the technical functions or materials of the product or its internal structure or other features that do not affect the overall visual effect shall not be taken into account.
 
The following factors are more likely to affect the overall visual effect of a design:
(1) Parts of a product that are more likely to be noticed when the product is being used in a normal way, as compared with other parts of the product; and
(2) Other design features of the patented design that can be differentiated from the design features of existing designs;
If there exists no difference between the accused infringing design and a patented design in terms of the overall visual effect, the people's court shall determine the two are identical. If there exists no substantive difference between the two in terms of the overall visual effect, the court shall determine the infringing design as similar to the patented design.
 
Article 12    The use of a product infringing upon invention or utility model patent as a component of another product shall be determined by the people's court as "utilization" as specified in Article 11 of the Patent Law. The sale of that "another product" shall be determined by the people's court as a "sale" as specified in Article 11 of the Patent Law.
In the event of using a product that infringes upon design patent as a component of another product, the production and sale of that another product shall be determined as a "sale" as specified in Article 11 of the Patent Law, except where the said product is only of technical function in that "another product".
Under the circumstances specified in the preceding two paragraphs, if cooperation exists between the accused infringers, the said act shall be determined by the people's court as "joint infringement".
 
Article 13    Original products acquired by using the patented method shall be determined by the people's court as "products acquired directly through the patented method" as specified in Article 11 of the Patent Law.
 
Follow-up products acquired through further processing the aforementioned original product shall be determined by the people's court as "products acquired directly through the patented method" as specified in Article 11 of the Patent Law.
 
Article 14    If all the technical features of the accused infringing technical plan that fall under the scope of patent protection are identical or similar to a corresponding technical feature of the existing technical plan, the people's court shall determine the technology utilized by the accused infringer as an existing technology as provided in Article 62 of the Patent Law.
If the accused infringing design is identical to an existing design or no substantive difference exists therebetween, the people's court shall determine the technology utilized by the accused infringer as an existing technology as provided in Article 62 of the Patent Law.
 
Article 15    If an accused infringer lays claim to the prior use right on the ground of technologies or designs acquired illegally, the people's court shall not uphold such claim.
Under either of the following circumstances, the people's court shall determine the infringer as "having made necessary preparation for the production or utilization" as provided in Item (2) of Article 69 of the Patent Law:
(1) The infringer has completed the main technical drawings or technique documents required for utilizing the invention; or
(2) The infringer has produced or purchased the main equipment or raw materials required for utilizing the invention.
 
"Original scope" as prescribed in Item (2) of Article 69 of the Patent Law shall include the production scale before the patent application date or the production scale that can be achieved by using the existing production facilities or based on the existing production facilities.
 
If the holder of prior use right transfers the technology or design for which they have utilized or have made necessary preparation for such utilization, or licenses others to utilize the same after the patent application date, and the accused infringer alleges that the utilization act is an extension of utilization within the original scope, the people's court shall not uphold such allegation, unless the technology or design is transferred altogether along with the original enterprise.
 
Article 16    Where a people's court determines the "benefit acquired by an infringer through the infringement" as specified in Paragraph 1 of Article 65 of the Patent Law, such benefit shall be limited to the benefits acquired by the infringer through the patent infringement activity , and the benefits derived from other rights shall be deducted to a reasonable extent .
 
If the product produced through infringing an invention or utility model patent is a component of another product, the people's court shall determine the amount of damages according to the value of the component itself, the role it plays in realizing profit of the product and other relevant factors.
 
If it is a packaging that has infringed a design patent, the people's court shall reasonably determine the amount of damages according to the value of the packaging itself, the role it plays in realizing the profit of the packaged product, and other relevant factors.
 
Article 17    If a product or the technical plan of a product is not well known to the public both domestically and abroad prior to the application date, the people's court shall determine such product as the "new product" specified in Paragraph 1 of Article 61 of the Patent Law.
 
Article 18    Where a right-owner notifies others of their infringement of patent right, in such case the person being warned, or the interested parties, may urge the right-owner to exercise his litigation rights in writing. However, if the right-owner neither withdraws the notification nor files an action within one month from receipt of such written notice or within two months from issuance of the written notice, in such case the person being warned or the interested parties may file an action before the people's court requesting a determination that their act has not infringed the patent right, and the people's court shall accept the case.
 
Article 19    If the accused patent infringement occurs prior to October 1, 2009, the people's court shall apply the previous Patent Law. If the infringement occurs after October 1, 2009, the people's court shall apply the revised Patent Law.
 
Where the accused patent infringement occurs prior to October 1, 2009 but continues after October 1, 2009, and the infringer shall be liable for damages according to either the previous or the revised Patent Law, the people's court shall determine the amount of damages according to the revised Patent Law.
 
Article 20    If any judicial interpretations previously promulgated by the Supreme People's Court are not consistent with these Interpretations, these Interpretations shall prevail.