Beijing High People's Court, Several Questions Concerning Patent Infringement Judgments Opinion (Trial Implementation)

Issued: September 29 2001

Main contents: The Opinion contains 129 articles, addressing the finer judgment questions in patent infringement cases. Part One concerns the scope of protection of patent rights in inventions and utility models. Part Two is focused on determination of infringement of patent rights in inventions and utility models. It discusses the application of several principles, including the doctrine of literacy (which means that each and every element recited in an infringement claim has identical correspondence in the allegedly infringing device or process), the doctrine of equivalents (which means one or more elements of the allegedly infringing device or process is essentially the equivalent of one or more elements recited in the infringement claim) and the doctrine of prosecution history estoppel (which prevents a patent owner in an infringement claim from recapturing what he/she has disclaimed or disavowed during prosecution of his/her application for patent). Part Three deals with determination of infringement of patent rights in designs, which includes a discussion on how to determine whether two designs are "the same" or "similar". Part Four concerns the determination of other patent right infringements, including indirect infringement and passing off. Part Five discusses defences against patent infringement, including patent misuse, non-infringement defence, first-to-use defence, exhaustion of rights defence and limitation of action defence. Part Six contains the interpretation of certain terms.
Related legislation: PRC, Patent Law (2nd Revision), Aug 25 2000, CLP 2000, No.8 p7 & CLP 1992 No.9 p42; PRC, Patent Law Implementing Rules (Revised), CLP 2001 No.7 p53; Supreme People's Court, Questions Concerning the Application of Law in Hearings on Patent Dispute Cases Several Provisions, June 22 2001, CLP 2001 No.6 p9 and Supreme People's Court, Several Questions on the Implementation of the Opinion People's Court, Several Questions on the Implementation of the«PRC, Civil Law General Principles»Opinion (Trial Implementation)