Page 130 - 2017 White Paper
P. 130
7 White Paper on the Business Environment in China
of production or business operations to implement the the interests acquired by the infringer due to the
act infringing upon patent rights without the approval infringement according to the patentee’s claims and the
of the patentee, the patentee’s claim that the act of the evidence they provided”.
provider falls within the scope of ‘assisting others in
committing a tort’ as prescribed in Article 9 of the Tort This Article delegates the obligation to produce
Law shall be supported by the people’s court. evidence related to the interests acquired by the infringer
to the infringer according to the preliminary evidence
Where any party, fully aware that the relevant product produced by the patentee and the information regarding
or method is granted with the patent right, actively the evidence controlled by the infringer. This change is
induces any other party to conduct an act infringing not substantial and accords with the provisions of the
upon the patent right for the purpose of production or Code of Civil Procedure.
business operation without the licensing of the patentee,
the patentee’s claim that the act of the inducer falls 3. Rule to “Dismiss the Case” First and then Initiate a
within the scope of ‘instigating others to implement an Separate Case
infringement act’as prescribed in Article 9 of the Tort Law
shall be supported by the people’s court”. Interpretation (II), Article 2 reads, “where the claims
of a patentee in a patent infringement action is declared
As to the system of indirect infringement of patents, invalid by the Patent Reexamination Board, the people’s
the Draft of the Patent Law that is now under formulation court that tries the patent infringement dispute case may
has the similar articles. In practice, indirect infringers rule to dismiss the action which is initiated based on such
that have no intention to liaison with infringers do not invalid claims.
constitute joint default. However, indirect infringers,
knowing that the parts to be provided by them are Where there is evidence proving that the decision
exclusively used for producing products infringing of declaring the invalidation of the aforesaid claims is
upon patent rights, provide the parts to infringers that set aside by an effective administrative judgment, the
are liable. Considering the obvious subject matter and patentee may initiate a separate action.
parts supplied by them are the exclusive parts of direct
infringing acts or their acts of actively instigating others Where the patentee initiates a separate action, the
to implement an infringing act, the Interpretation (II) limitation of action for patent infringement shall be
includes indirect infringers to the scope of regulation of calculated from the date when the written administrative
Article 9 of the Tort Law. judgment as mentioned in paragraph 2 of this Article is
served”.
2. Improve Rules of Evidence on the Amount of
Compensation in Patent Infringement Litigation Where the claims of a patentee in a patent
infringement action is declared invalid by the Patent
Interpretation (II), Article 27 reads, “where it is Reexamination Board, the people’s court that tries the
difficult to determine the actual losses suffered by the patent infringement dispute case may rule to ‘dismiss
patentee due to infringement, the people’ court shall, in the action’ without waiting for the final result of the
accordance with the provisions of paragraph 1 of Article administrative litigation. This Article also provides a
65 of the Patent Law, request the patentee to produce judicial remedy to the patentee, namely, “initiating a
evidence to prove the interests acquired by the infringer separate action”. The Interpretation (II) provides that
due to the infringement. Under the circumstance that the court may dismiss the action procedurally rather
the patentee has provided the preliminary evidence on than substantively, meaning that if the Reexamination
the interests acquired by the infringer, and the account Board’s decision that the claims of a patentee is invalid
books or materials related to the patent infringing act are are overturned by the administrative ruling, the patentee
primarily controlled by the infringer, the people’s court can initiate a separate action.
may order the infringer to provide such account books
or materials. Where the infringer refuses to provide or 4. Strengthen the Determinacy of the Protection of
provides any false account books or materials without the Scope of Patent, Provide Clear Legal Anticipation to
any justifiable reason, the people’s court may determine the Public
130
of production or business operations to implement the the interests acquired by the infringer due to the
act infringing upon patent rights without the approval infringement according to the patentee’s claims and the
of the patentee, the patentee’s claim that the act of the evidence they provided”.
provider falls within the scope of ‘assisting others in
committing a tort’ as prescribed in Article 9 of the Tort This Article delegates the obligation to produce
Law shall be supported by the people’s court. evidence related to the interests acquired by the infringer
to the infringer according to the preliminary evidence
Where any party, fully aware that the relevant product produced by the patentee and the information regarding
or method is granted with the patent right, actively the evidence controlled by the infringer. This change is
induces any other party to conduct an act infringing not substantial and accords with the provisions of the
upon the patent right for the purpose of production or Code of Civil Procedure.
business operation without the licensing of the patentee,
the patentee’s claim that the act of the inducer falls 3. Rule to “Dismiss the Case” First and then Initiate a
within the scope of ‘instigating others to implement an Separate Case
infringement act’as prescribed in Article 9 of the Tort Law
shall be supported by the people’s court”. Interpretation (II), Article 2 reads, “where the claims
of a patentee in a patent infringement action is declared
As to the system of indirect infringement of patents, invalid by the Patent Reexamination Board, the people’s
the Draft of the Patent Law that is now under formulation court that tries the patent infringement dispute case may
has the similar articles. In practice, indirect infringers rule to dismiss the action which is initiated based on such
that have no intention to liaison with infringers do not invalid claims.
constitute joint default. However, indirect infringers,
knowing that the parts to be provided by them are Where there is evidence proving that the decision
exclusively used for producing products infringing of declaring the invalidation of the aforesaid claims is
upon patent rights, provide the parts to infringers that set aside by an effective administrative judgment, the
are liable. Considering the obvious subject matter and patentee may initiate a separate action.
parts supplied by them are the exclusive parts of direct
infringing acts or their acts of actively instigating others Where the patentee initiates a separate action, the
to implement an infringing act, the Interpretation (II) limitation of action for patent infringement shall be
includes indirect infringers to the scope of regulation of calculated from the date when the written administrative
Article 9 of the Tort Law. judgment as mentioned in paragraph 2 of this Article is
served”.
2. Improve Rules of Evidence on the Amount of
Compensation in Patent Infringement Litigation Where the claims of a patentee in a patent
infringement action is declared invalid by the Patent
Interpretation (II), Article 27 reads, “where it is Reexamination Board, the people’s court that tries the
difficult to determine the actual losses suffered by the patent infringement dispute case may rule to ‘dismiss
patentee due to infringement, the people’ court shall, in the action’ without waiting for the final result of the
accordance with the provisions of paragraph 1 of Article administrative litigation. This Article also provides a
65 of the Patent Law, request the patentee to produce judicial remedy to the patentee, namely, “initiating a
evidence to prove the interests acquired by the infringer separate action”. The Interpretation (II) provides that
due to the infringement. Under the circumstance that the court may dismiss the action procedurally rather
the patentee has provided the preliminary evidence on than substantively, meaning that if the Reexamination
the interests acquired by the infringer, and the account Board’s decision that the claims of a patentee is invalid
books or materials related to the patent infringing act are are overturned by the administrative ruling, the patentee
primarily controlled by the infringer, the people’s court can initiate a separate action.
may order the infringer to provide such account books
or materials. Where the infringer refuses to provide or 4. Strengthen the Determinacy of the Protection of
provides any false account books or materials without the Scope of Patent, Provide Clear Legal Anticipation to
any justifiable reason, the people’s court may determine the Public
130
