A few days ago, the Supreme People's Court of China released the draft of the Second Edition of Judicial Interpretation on Patent Infringement Dispute Cases Trial (hereinafter referred to as the Draft), which attracted widespread attention from the public. In the Draft, some issues such as the measures of infringement litigation on obvious invalid patent, the definition of general consumer in design patents infringement cases, the provisions on indirect infringement and the defense on implement standard patent infringement and so on, are especially striking. Recently, the Intellectual Property Court under the Supreme People's Court held a symposium to hear the public advice about the Draft in Beijing. Over 40 representatives from central authorities, courts, intermediary institutions and enterprises took part in the discussion.

In recent years, the validity of the patent challenges the trial in patent infringement cases. Article 5 of the Draft goes that, when the patent specification conflicts to the patent claims, the court shall make the judgment based on the claims if it is clearly recorded, otherwise the court shall directly dismiss the indictment. And the third paragraph of the article goes that, when one of the parties managed to prove that the patent was requested for invalidation based on the reasons above before the adjudication, the court may make  an abatement of action. Accordingly, Dong Zheng, the Deputy Director of the Department of Treaty and Law under the State Intellectual Property Office of China, spoke highly of the paragraph as it could guide the parties timely to file the request for invalidation if the defects mentioned above happened.

Since it is difficult to define "customers" in the design patent infringement cases, the second paragraph of Article 17 in the Draft defines it as "the direct buyers of the alleged infringement product". Professor Feng Xiaoqing, Dean of the Intangible Asset Management Research Center  under China University of Political Science and Law, holds that the definition might cause ambiguity, and still need further improvement. As well as Judge Ma Yunpeng from Beijing Second Intermediate People's Court, argued that the definition of judicial interpretation of patent law in 2009 is more appropriate.

The confirmation of the indirect infringement is always an issue in patent infringement trial. Article 25 in the Draft goes that, it is a tort to provide generally products specially used for patent products to people unlicensed or unobligated without permission. Zhang Yan, the Chief Inspector of Intellectual Property Law of Asia-Pacific Region of IBM appreciated the article. Zhang considered that it would solve some existing problems both in the Patent Law and the Tort Law, and was helpful to protect the legitimate rights and interests of the patentee.

Aiming at the standard patent infringement, Article 27 in the Draft indicates that the related patentee shall not violate the principle of fair, reasonable and non-discriminatory. Ai Hong, a legal consultant of AstraZeneca Pharmaceutical Company, held that the implementation of this principle required both the patentee and the licensee were out of goodwill, and a restriction mechanism to the potential malicious licensee was needed.

After issuing the Interpretation on Patent Infringement Dispute Cases Trial in December 2009, China gets good effect on protecting the interests of the patentee in accordance with the law and encouraging innovation of science and technology. In solving emerging problems in the patent cases trial during the last five years, the Supreme People's Court of China released the Draft. During a whole month for advice and suggestions, the Draft has successfully grabbed hot discussion and wide attention from the public.

 (China IP News)