Page 132 - 2017 White Paper
P. 132
7 White Paper on the Business Environment in China
Interpretation (II), Article 7, reads “where any alleged users should stop using the products if they have proved
infringing technical solution is supplemented with other the legal source and paid the reasonable consideration.
technical features on the basis of including all technical The Supreme People’s Court, after study and seeking
features of the claims for any enclosed composition, the the opinions of the relevant legislative departments,
people’s court shall determine that the alleged infringing holds that patent right has strong exclusivity, but that
technical solution does not fall within the scope of does not mean the exclusiveness can be expanded
protection of the patent right, except when the added without limitation. The Patent Law is not only a law for
technical features unavoidably fall within the scope of patentees. To blindly emphasize the unilateral interests
the standard quantity of admixture. of patentees and ignore the justifiable interests of bona
fide users will encroach the reasonable space of bona
The claims for the enclosed composition as mentioned fide users and impede trading safety which is not the
in the preceding paragraph generally exclude the claims original intention of Article 70 of the Patent Law and is
for traditional Chinese medicine composition”. also against the basic spirit of law of balance of interest.
Therefore, Interpretation (II), Article 25, excludes bona
This Article clarifies the interpretation rules of the fide users’ responsibility of stopping using when they
claims for the enclosed composition that has been have paid reasonable consideration through a proviso,
controversial for a long time in reality, keeping consistent that is to say, if a user is in good faith subjectively and
with the drafting methods and interpretation rules that provides legal source objectively, and paid reasonable
are well accepted in the industry in the long term practice consideration to the seller when he or she obtained the
of patents. infringing products, then the prohibitive force of patent
right shall be stopped from stretching.
5. Balance the Interests between Patentees and Bona
Fide User 6. Exception of Order to Cease the Infringing Acts
Interpretation (II), Article 25 reads, “where any party Interpretation, Article 26 reads,“where the defendant’s
uses, offers for sale or sells any patent-infringing products acts constitutes an infringement upon the patent, and
which it does not know are manufactured and sold the patentee requests to order the defendant to cease
without the licensing of the patentee for the purpose the infringing act, the people’s court shall give support
of production or business operation, and produces thereto, but, in consideration of the national interests
evidence to prove the legal source of the product, the and public interests, the people’s court may not order the
patentee’s claim for cessation of aforesaid use, offer for defendant to cease the alleged act, but order it to pay the
sale and sale acts shall be supported by the people’s corresponding reasonable expenses”.
court, except when the user of the alleged infringing
product produces evidence to prove that it has paid the Latest Progress of Beijing, Shanghai and
reasonable consideration for the product”. Guangzhou Intellectual Property Courts
The “it does not know” in paragraph 1 of this Article At the end of 2014, three specialized Intellectual
means “it actually does not know and should not have Property courts were set up in Beijing, Shanghai, and
known”. Guangzhou. In the past two years, the Intellectual
Property courts in these three places play a leading role in
The “legal source” as mentioned in paragraph 1 of this the judicial protection of Intellectual Property. In order to
Article means the acquisition of the product through strengthen the judicial protection of Intellectual Property,
any lawful marketing channel, common sales contract or raise the level of specialization and internationalization of
any other normal business mode. The relevant evidence trials, promote the reform of judicial system of Intellectual
on legal source in line with trading practices shall be Property and push to construct a legal community,
provided by users, offerers for sale or sellers. based on reality, they explored and acquired substantial
experience and practice, which is worth summing up to
Patent Law, Article 70 provides that users, offerers discover problems and difficulties to be solved.
for sale or sellers are exempt from any liabilities for
compensation if their defenses of legal source are
established. The disputed issue is that whether bona fide
132
Interpretation (II), Article 7, reads “where any alleged users should stop using the products if they have proved
infringing technical solution is supplemented with other the legal source and paid the reasonable consideration.
technical features on the basis of including all technical The Supreme People’s Court, after study and seeking
features of the claims for any enclosed composition, the the opinions of the relevant legislative departments,
people’s court shall determine that the alleged infringing holds that patent right has strong exclusivity, but that
technical solution does not fall within the scope of does not mean the exclusiveness can be expanded
protection of the patent right, except when the added without limitation. The Patent Law is not only a law for
technical features unavoidably fall within the scope of patentees. To blindly emphasize the unilateral interests
the standard quantity of admixture. of patentees and ignore the justifiable interests of bona
fide users will encroach the reasonable space of bona
The claims for the enclosed composition as mentioned fide users and impede trading safety which is not the
in the preceding paragraph generally exclude the claims original intention of Article 70 of the Patent Law and is
for traditional Chinese medicine composition”. also against the basic spirit of law of balance of interest.
Therefore, Interpretation (II), Article 25, excludes bona
This Article clarifies the interpretation rules of the fide users’ responsibility of stopping using when they
claims for the enclosed composition that has been have paid reasonable consideration through a proviso,
controversial for a long time in reality, keeping consistent that is to say, if a user is in good faith subjectively and
with the drafting methods and interpretation rules that provides legal source objectively, and paid reasonable
are well accepted in the industry in the long term practice consideration to the seller when he or she obtained the
of patents. infringing products, then the prohibitive force of patent
right shall be stopped from stretching.
5. Balance the Interests between Patentees and Bona
Fide User 6. Exception of Order to Cease the Infringing Acts
Interpretation (II), Article 25 reads, “where any party Interpretation, Article 26 reads,“where the defendant’s
uses, offers for sale or sells any patent-infringing products acts constitutes an infringement upon the patent, and
which it does not know are manufactured and sold the patentee requests to order the defendant to cease
without the licensing of the patentee for the purpose the infringing act, the people’s court shall give support
of production or business operation, and produces thereto, but, in consideration of the national interests
evidence to prove the legal source of the product, the and public interests, the people’s court may not order the
patentee’s claim for cessation of aforesaid use, offer for defendant to cease the alleged act, but order it to pay the
sale and sale acts shall be supported by the people’s corresponding reasonable expenses”.
court, except when the user of the alleged infringing
product produces evidence to prove that it has paid the Latest Progress of Beijing, Shanghai and
reasonable consideration for the product”. Guangzhou Intellectual Property Courts
The “it does not know” in paragraph 1 of this Article At the end of 2014, three specialized Intellectual
means “it actually does not know and should not have Property courts were set up in Beijing, Shanghai, and
known”. Guangzhou. In the past two years, the Intellectual
Property courts in these three places play a leading role in
The “legal source” as mentioned in paragraph 1 of this the judicial protection of Intellectual Property. In order to
Article means the acquisition of the product through strengthen the judicial protection of Intellectual Property,
any lawful marketing channel, common sales contract or raise the level of specialization and internationalization of
any other normal business mode. The relevant evidence trials, promote the reform of judicial system of Intellectual
on legal source in line with trading practices shall be Property and push to construct a legal community,
provided by users, offerers for sale or sellers. based on reality, they explored and acquired substantial
experience and practice, which is worth summing up to
Patent Law, Article 70 provides that users, offerers discover problems and difficulties to be solved.
for sale or sellers are exempt from any liabilities for
compensation if their defenses of legal source are
established. The disputed issue is that whether bona fide
132
