The Supreme Court Invites the Public for Comments on
Judicial Interpretation of Patent Infringement

The Supreme People’s Court announced the Interpretation on Some Issues Concerning Application of Laws in Hearing Cases of Patent Infringement Disputes (draft) on June 18, 2009, inviting the public for comments.

The Interpretation on Some Issues of Application of Laws in Hearing Cases of Patent Infringement Disputes (referred to as the Interpretation) provides for the extent of protection of the patent right, determination of patent infringement and prior-art defense.

According to Article 2 of the Interpretation, The people's court shall determine the extent of protection of the patent right for invention or utility model on the basis of the contents of the claims understood by a person skilled in the art through reading the specification and the drawings. When the contents of the claims understood by the person skilled in the art are different from the literary meaning of the claims, the extent of protection shall be determined by the contents of the claims understood by the person skilled in the art. The extent of protection of the patent right shall accord with the purposes of the invention for patent. The extent of protection shall not include the technical solution having detects or deficiencies in the prior art to be overcame by the patent.

Moreover, Article 4 provides that the court shall determine the scope of protection on the basis of equivalent technical features when the right holder contends that the extent of protect includes the scope which is defined by the equivalent features.

Regarding the scope of protection of the patent right for design, Article 9 provides that the extent of protection of the patent right for design shall be determined on the basis of a design of a product in a classification identical or similar to that of the product of the patented design, which is identical or similar to the patented design. If the classification of products is identical or similar but the accused design is not identical or similar to the patented design, or the accused design is identical or similar to the patented design but the classifications of the products are not identical or similar, the accused design does not fall into the extent of protection of the patent right for design.

Regarding to the prior-art defense, Article 17 provides that if all technical features in the accused technical solution are fallen into the extent of protection of the patent right and are identical or equivalent to the corresponding technical features of one technical solution in prior art, the people's court shall find that the alleged infringer has evidences proving that the exploited technology is an existing technology.

The public is invited to submit their comments via mail or online (www.chinacourt.org). The deadline for comments is July 10, 2009.

The Supreme People’s Court Interpretation on Some Issues Concerning Application of Laws in Hearing Cases of Patent Infringement Disputes (draft)