Adopted at the 1676^th meeting of the Judicial Committee of the Supreme People's Court on January 25, 2016, and amended in accordance with Decision of the Supreme People's Court to Amend Eighteen Intellectual Property Judicial Interpretations including the Interpretation (II) by the Supreme People's Court on Some Issues concerning the Application of Law to the Trial of Cases involving Patent Infringement Disputes adopted at the 1823^th meeting of the Judicial Committee of the Supreme People's Court on December 23, 2020.

In order to facilitate correct trial of the cases involving patent infringement disputes, the present interpretation is formulated in accordance with the Civil Code of the People's Republic of China, 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 in combination with practical judicial experience.

Article 1. Where there are two or more claims in the claims, the patentee shall specify the claim(s) based on which the accused infringer is sued for infringing the patent right in the indictment. Where the indictment contains no such specification or the specification is not clear, the People's Court shall order the patentee to specify the same. Where the patentee still fails to make specification despite the court's order, the Court may dismiss the lawsuit.

Article 2. Where the claim(s) asserted by the patentee in a patent infringement lawsuit is/are declared invalid by the patent administrative department under the State Council, the People's Court trying the cases involving patent infringement disputes may dismiss the lawsuit filed by the patentee based on the invalid claim(s).

Where there is evidence to show that the decision declaring invalidation of the above-mentioned claims has been revoked by an effective administrative judgment, the patentee can file a separate lawsuit.

In case of the separate lawsuit filed by the patentee, limitation of action shall be counted from the date on which the administrative judgment mentioned in paragraph 2 of this Article is served.

Article 3. Where any patent right is requested to be declared invalid because the specifications cannot be used to interpret the claims due to the evident violation of Article 26.3 and Article 26.4 of the Patent Law, and the case does not fall within the scope of the circumstances as prescribed in Article 4 of this Interpretation, the People's Court that tries the cases involving the patent infringement disputes shall generally rule to suspend the action; or where the patent right is not requested to be declared invalid within a reasonable period of time, the People's Court may determine the extent of protection of the patent right according to the contents of the claims.

Article 4. Where any grammars, words, punctuations, graphics, symbols or the like in the claims, specifications and the drawings are ambiguous, but those ordinary skill in the art can get the unique understanding by reading the claims, specifications and the drawings, the People's Court shall make determination based on such only understanding.

Article 5. When the People's Court is determining the extent of protection of a patent right, the technical features described in the preamble portion and characterizing portion of the independent claims, as well as in the reference portion and characterizing portion of dependent claims shall all have definitive effect.

Article 6. The People's Court may interpret the claims of the patent involved in a case by using any other patent which has the divisional application relationship with the patent involved in the case and its prosecution history and effective decisions or judgments in the prosecution and invalidation process.

Prosecution history includes the written materials submitted by patent applicant or patentee during the patent examination, reexamination and/or invalidation procedures; Office Action, records of interview, records of oral proceeding, effective patent reexamination decisions and invalidation decisions, etc., issued by the patent administration department under the State Council.

Article 7. Where the accused infringing technical solution has other technical features in addition to all the technical features of the close-ended claims of a composition, the People's Court shall determine that the accused infringing technical solution does not fall within the extent of protection of the patent right, unless the additional technical features pertain to unavoidable impurities at normal quantity.

The close-ended claims of a composition mentioned in the preceding paragraph generally do not include the claims of Chinese medicine composition.

Article 8. A functional feature refers to a technical feature which defines the structure, composition, steps, condition or the relations thereof through their functions performed or effects achieved in an invention-creation, unless those ordinary skill in the art can directly and clearly determine the detailed embodiments for performing such functions or effects simply by only reading the claims.

If, when compared with the technical feature that is indispensable to perform the aforementioned function or effect as described in the specification and drawings, the corresponding technical feature of an accused infringing technical solution can, with essentially the same means, perform the same function and achieve the same effects, and can be envisaged by those ordinary skill in the art without creative work at the time when the accused infringement act takes place, the People's Court shall determine that the such corresponding technical feature is identical or equivalent with the functional feature.

Article 9. Where an accused infringing technical solution cannot be applied to the use environment defined by the use environment feature of the patent claims, the People's Court shall determine that the accused infringing technical solution does not fall within the extent of protection of the patent right.

Article 10. Where the manufacturing process for an accused infringing product is neither identical with nor equivalent to the technical feature in the patent claims that uses manufacturing process to define the product, the People's Court shall determine that the accused infringing technical solution does not fall within the extent of protection of the patent right.

Article 11. Where the sequence of the technical steps is not specifically described in a process claim, but those ordinary skill in the art can, after reading the claims, specification and drawings, directly and clearly conclude that the technical steps shall be implemented according to certain sequence, the People's Court shall determine that such step sequence has definitive effect to the extent of protection of the patent right.

Article 12. Where a claim defines a numeric feature using "at least" or "not more than" or any other terms, and those ordinary skill in the art deem, after reading the claims, specifications and drawings, that the technical solution of the patent has specifically emphasized definitive effect of such terms to the technical feature, the patentee's claim that a different numeric feature is an equivalent feature shall not be supported by the People's Court.

Article 13. Where a patentee can prove that restricting or narrowing amendment to claims, specification and drawings or observations made by the patent applicant or the patentee during the prosecution and invalidation process have been specifically denied, the People’s Court shall determine that such amendment or observations have not led to abandonment of the technical solutions.

Article 14. In determining the knowledge level and cognitive ability of ordinary consumers of a design, the People's Court shall generally consider the design space of identical or similar type to the patented design at the time when the infringement act takes place. In case of a larger design space, the People's Court may determine that ordinary consumers are not apt to notice the minor difference between different designs; in case of a smaller design space, the People's Court may determine that ordinary consumers are more likely to notice the minor difference between different designs.

Article 15. With respect to a design patent of products in set, where the accused infringing design is identical with or similar to the design of one of the products, the People's Court shall determine that the accused infringing design falls within the extent of protection of the patent right.

Article 16. For a design patent of an assembled product whose components have exclusive assembly relationship, where an accused infringing design is identical with or similar to the design in the assembled state, the People's Court shall determine that the accused infringing design falls within the extent of protection of the patent right.

For a design patent of an assembled product whose components have no assembly relationship or no exclusive assembly relationship, where the accused infringing design is identical with or similar to the design of all the individual components of the assembled product, the People's Court shall determine that the accused infringing design falls within the extent of protection of the patent right; where the accused infringing design is in lack of certain individual component of patent design, or is neither identical with nor similar to the patent design, the People's Court shall determine that the accused infringing design does not fall within the extent of protection of the patent right.

Article 17. For a design patent of a product in the variable states, where the accused infringing design is identical with or similar to the design under all states of use as shown in the diagram of variable states, the People's Court shall determine that the accused infringing design falls within the extent of protection of the patent right; where the accused infringing design is in lack of a design of certain state of use, or is neither identical with nor similar to a design of certain state of use, the People's Court shall determine that the accused infringing design does not fall within the extent of protection of the patent right.

Article 18. Where a patentee takes a legal action to require an entity or an individual to pay an appropriate fee for exploiting its invention during the period from the publication date of the application for a patent for invention to the date of the announcement of the grant of the patent right in accordance with Article 13 of the Patent Law, the People's Court shall determine the reasonable amount by reference to the corresponding patent license fee.

Where the extent of protection sought by the applicant upon publication of application for a patent for invention is inconsistent with the extent of protection of patent right upon announcement of grant of patent right for invention, if the accused technical solution falls within both of the aforementioned two extents of protection, the People's Court shall determine that the defendant has exploited the invention at issue during the period mentioned in the preceding paragraph; if the accused technical solution falls within only one of the two extents of protection, the People's Court shall determine that the defendant has not exploited the invention during the period mentioned in the preceding paragraph.

After the announcement of grant of the patent right for an invention, where without the authorization of the patentee, the products that have been manufactured, sold or imported by another party during the period as mentioned in paragraph 1 of this Article are used, offered for sale, or sold for the purpose of production or business operation and such another party has paid or promised in writing to pay appropriate fees prescribed in Article 13 of the Patent Law, the patentee's claim that the aforementioned behaviors of usage, offering for sale or sale infringe upon the patent right shall not be supported by the People's Court.

Article 19. Where a product sales contract is established according to the law, the People's Court shall determine that the product sales fall within the scope of the sale prescribed in Article 11 of the Patent Law.

Article 20. Where a subsequent product, that is derived from further processing or treatment of a product directly obtained by the patented process, is re-processed or re-treated, the People's Court shall determine that the product does not fall within the scope of the "product directly obtained by the patented process" prescribed in Article 11 of the Patent Law.

Article 21. Where, with clear knowledge that relevant products are materials, equipment, parts, intermediaries or the like specifically used to exploit a patent, and without the authorization of the patentee, a party, for the purpose of production or business operation, provides such products to another party to carry out patent infringement activities, the patentee's claim that the act of the provider falls within the scope of "assisting another party in committing a tort" prescribed in Article 1169 of the Civil Code shall be supported by the People's Court.

Where, with clear knowledge that relevant products and methods have been granted patent, and without the authorization of the patentee, a party, for the purpose of production or business operation, actively induces another party to carry out patent infringement activities, the patentee's claim that the act of the inducer falls within the scope of "abetting another party in committing a tort" prescribed in Article 1169 of the Civil Code shall be supported by the People's Court.

Article 22. With respect to the accused infringer's defense based on the prior art or the prior design, the People's Court shall define the prior art or the prior design according to the Patent Law that was in effect on the date of filing application for a patent.

Article 23. Where the accused infringing technical solution or design falls within the extent of protection of the prior implicated patent right, the defense of non-infringement of the patent right of the accused infringer based on the fact that its technical solution or design has been granted patent right shall not be supported by the People's Court.

Article 24. Where the recommended state, industry or regional standards clearly indicate the necessary patent information, the defense of non-infringement of the patent right of the accused infringer for the reason that the implementation of such standards does not require the licensing of the patentee shall not be supported by the People's Court in general.

Where the recommended state, industry or regional standards clearly indicate the necessary patent information, and the patentee, during negotiation with the accused infringer on patent exploitation and licensing conditions, violates on purpose its licensing obligations of being fair, reasonable and non-discriminative as committed in formulating the standards, resulting in failure to conclude the patent exploitation and licensing contract, and the accused infringer has no obvious fault during the negotiation, the patentee's claim on request for cessation of the exploitation of the standards shall not be supported by the People's Court in general.

The patent exploitation and licensing conditions mentioned in paragraph 2 of this Article shall be determined by the patentee and the accused infringer through negotiation. If an agreement cannot be reached after sufficient negotiation, the parties may request the People's Court to make determination. In determining the above exploitation and licensing conditions, the People's Court shall follow the principles of fairness, reasonableness and non-discrimination, and consider factors such as the degree of innovation of the patent, its functions in the standards, the technical fields to which the standards belong, the nature and implementation scope of the standards, as well as the corresponding licensing conditions comprehensively.

Where there are otherwise prescriptions by laws or administrative regulations concerning patents in implementing standards, such prescriptions shall prevail.

Article 25. Where a party uses, offers for sale or sells patent infringing products for the purpose of production or business operation, without knowing that such products are manufactured and sold without the authorization of the patentee, and is able to prove with evidence the legitimate sources of such products, the patentee's claim on the request for cessation of the above mentioned behaviors of using, offering for sale and selling the infringed products shall be supported by the People's Court, unless the user of the accused infringing products can prove with evidence that it has paid reasonable prices for the products.

"Without knowing" in paragraph 1 of this Article shall mean not to know actually and ought not to know.

"Legitimate source" in paragraph 1 of this Article shall mean acquiring products via normal business activities such as through lawful sales channels and with usual sales contracts. To prove legitimate source, the user, the party offering for sale or the seller shall provide relevant evidence that complies with trading practices.

Article 26. Where the defendant is found to commit patent infringement, the patentee's request for ordering cessation of the infringement activity shall be supported by the People's Court. However, the People's Court may, instead of ordering the defendant to cease the infringement activity, order the defendant to pay reasonable fees in consideration of the national interests and public interests.

Article 27. Where it is difficult to determine the patentee's actual loss suffered due to the infringement, the People's Court shall require the patentee to provide evidence for the profits gained by the infringer through the infringement according to Article 65.1 of the Patent Law; where the patentee has provided initial evidence for the profits gained by the infringer but the account books and materials related to the patent infringement acts are primarily controlled by the infringer, the People's Court may order the infringer to provide such account books and materials; where the infringer refuses to provide such account books and materials without justification or provides falsified account books and materials, the People's Court may determine the profits gained by the infringer through the infringement based on the claims of and evidence provided by the patentee.

Article 28. Where the patentee and the infringer have agreement on the amount of compensation or the calculation method of the compensation in accordance with the law, and request that the amount of compensation be determined according to such agreement in the patent infringement lawsuit, the People's Court shall give support thereto.

Article 29. Where, after a decision declaring invalidation of patent right is made, the party concerned, based on the decision, applies for retrial in accordance with the law and requests revocation of the judgment or mediation statement of the patent infringement that was rendered but not enforced by the People's Court prior to the invalidation declaration of the patent right, the People's Court may rule to suspend the retrial and suspend the enforcement of the original judgment or the mediation statement.

Where the patentee has provided sufficient and valid guarantee to the People's Court to request continued enforcement of the judgment or mediation statement as mentioned in the preceding paragraph, the People's Court shall continue the enforcement; where the infringer has provided sufficient and valid counter-guarantee to request suspension of the enforcement, the People's Court shall approve such request. Where the decision on declaring invalidation of the patent right is not revoked by the effective judgment of the People's Court, the patentee shall compensate for the losses caused to the other party due to the continuous enforcement; If the decision on declaring invalidation of the patent right is revoked by the effective judgment of the People's Court, and the patent right remains valid, the People's Court may directly enforce the counter-guarantee based on the judgment or mediation statement mentioned in the preceding paragraph.

Article 30. Where a lawsuit is not filed with the People's Court against the decision declaring invalidation of the patent right within the statutory time limit, or the decision is not revoked by an effective judgment after a lawsuit is filed, the People's Court shall make retrial if the party concerned, based on the decision, applies for retrial in accordance with the law and requests revocation of the judgment or mediation statement of the patent infringement that was rendered but not enforced by the People's Court prior to the invalidation declaration of the patent right. If, based on such decision, the party concerned applies for terminating the enforcement of the judgment or mediation statement that was rendered but not enforced by the People's Court prior to the invalidation declaration of the patent right, the People's Court shall rule to terminate the same.

Article 31. This Interpretation shall enter into force on April 1, 2016. In case of any discrepancy between the relevant judicial interpretations previously issued by the Supreme People's Court and this Interpretation, this Interpretation shall prevail.