China’s Supreme People’s Court Releases Summary of IP Judgements for 2023
On February 23, 2024 China’s Supreme People’s Court (SPC) released the Supreme People’s Court Summary of Intellectual Property Court Judgments (2023) (最高人民法院知识产权法庭裁判要旨摘要(2023)). Per the SPC, the summary was formed “to highlight the judicial concepts, trial ideas, and adjudicative methods of the Intellectual Property Tribunal of the Supreme People’s Court in technical intellectual property rights and monopoly cases.” The Tribunal selected 96 cases from the 4,562 cases concluded in 2023, and summarized 104 key points as follows.
I. Patent authorization and confirmation cases
1. Identification of the subject matter of patent protection
[Case No.] （2022）最高法知行终375号
[Judge Summary] When judging whether a solution defined by a claim constitutes an object of protection under the patent law, it should generally be based on the understanding of a person skilled in the art after reading the claims and description, and whether the solution adopts specific technical means and aims to solve a specific technical problem, and achieves the corresponding technical effects; as to whether the solution can actually solve the technical problems claimed in the specification and achieve the corresponding technical effects, it is usually a matter of review that the specification discloses sufficient information, rather than a matter of review of the protected object.
2. Review of “further qualification” modifications in patent invalidation procedures
[Case No.] （2021）最高法知行终556、581、738号
[Judgment Summary] In the patent invalidation procedure, the examination of whether the modification method of a certain claim belongs to “further limitation” shall be based solely on whether the amended claim completely contains all the technical features of the original claim, and whether the amended claim has added technical features compared to the original claim, and whether the added technical features are all recorded in other claims shall prevail.
3. Responsiveness requirements for claim modification during patent invalidation procedures
[Case No.] （2021）最高法知行终556、581、738号
[Judgment Summary] In the patent invalidation procedure, the “further limitation” amendment of the claims should generally be limited to responding to the reasons for invalidation.
4. Should it be acceptable to only modify the dependent claims during the patent invalidation procedure?
[Case No.] （2021）最高法知行终548号
[Judgment Summary] During the patent invalidation procedure, if a party claims that the patentee only modifies the dependent claims but does not modify the independent claims in a way that should not be accepted, the People’s Court will not support it.
5. Determination of a negative claim amendment
[Case No.] （2021）最高法知行终44号
[Judgment Summary] A negative claim amendment generally refers to the introduction of negative technical features when amending a claim, excluding specific objects from the scope of protection of the original claim, thereby limiting the scope of protection of the original patent claim. It usually only applies to such a specific circumstance as a patent application loses novelty due to partially overlapping conflicting applications, or loses novelty due to an accidental preemption by the prior art, or excludes for non-technical reasons the subject matter not protected by the Patent Law.
Negative limitation amendments also need to comply with the provisions of Article 33 of the Patent Law. When making a specific judgment, the content disclosed in the original claims and description, the content that has been abandoned, the content retained after the negative limitation, and the relationship between the three, etc. should be comprehensively considered; if a person skilled in the art can determine that the content retained after the modification is in the original claim, has been disclosed directly or implicitly in the book or description, then the amendment complies with the provisions of Article 33 of the Patent Law.
6. Judgment on support in a priority document
[Case No.] (2021) （2021）最高法知行终344、371号
[Judge Summary] To determine whether the right of priority is established, it should be examined whether the content defined in the claims of the later application can be directly and undoubtedly derived from the patent document of the earlier application. Certain contents defined in the claims, such as drug administration characteristics, may not be considered in the judgment of novelty and inventive step because they do not have a substantial limiting effect, but they should be considered in the review of support in the priority document.
7. Acceptance of supplementary experimental data
[Case No.] (2019) （2019）最高法知行终33号
[Judgment Summary] If a drug patent applicant or right holder submits supplementary experimental data after the application date and claims that the data can prove that the patent application or patent is inventive and that the patent claims can be supported by the description, the people’s court shall review it. Where the original patent application document explicitly records or implicitly discloses the facts to be proved which are to be directly proved by the supplementary experimental data, and the applicant does not try to overcome the inherent defects of the original patent application document through the supplementary experimental data, the supplementary experimental data may be accepted, and whether the facts to be proved can be further examined.
8. Review of “facts to be proven” when judging whether supplementary experimental data should be accepted
[Case No.] （2022）最高法知行终15号
[Judgment Summary] The facts to be proven that are to be directly proven through supplementary experimental data should be explicitly recorded or disclosed implicitly in the original patent application documents, that is, the facts to be proven are required to be clear in the original application documents or can be directly and without doubt derived by those skilled in the field. If the fact to be proven itself is not explicitly recorded or disclosed implicitly in the original patent application document, and it is necessary to further confirm the “fact to be proven” itself through supplementary experimental data, the supplementary experimental data shall not be accepted.
9. Determination of sufficient disclosure in the description of claims defined by multi-variable equations
[Case No.] （2021）最高法知行终1071号
[Judgment Summary] Where the specification does not clearly define the numerical value selection of each variable, the relationship between each variable, and the relationship between the numerical value selection and the technical effect for a claim limited by equations containing two or more variables, so that after reading the specification and the specification, a person skilled in the art still needs to put in creative or excessive labor to solve the technical problem and achieve the technical effect, the party concerned may claim that there is insufficient disclosure, and the people’s court may support such a claim.
10. A patent for traditional Chinese medicine composition that limits the content of components by numerical ranges shall be fully disclosed
[Case No.] （2021）最高法知行终593号
[Judgement Summary] Where the specification of a patent for a traditional Chinese medicine composition with component content limited by a numerical value range proves the technical effect thereof based on clinical experimental data, if an skillful person can reasonably expect that the increase or decrease of the component content will not change the basic compatibility relationship and efficacy of the technical solution adopted in the clinical experimental data, it may generally be determined that the solution is fully disclosed.
11. Determination of whether the patent claims for protein inventions defined by a specific amino acid sequence can be supported by the description
[Case No.]（2021）最高法知行终448号
[Judgment Summary] With regard to a claim for a protein invention patent that defines a specific amino acid sequence, if the manner of implementation in the specification is completed with a glycosylated protein, the examination of whether the experimental data obtained under such circumstances can support the protein with the amino acid sequence as defined in the claim shall be comprehensively determined in light of the characteristics of the protein invention and the role glycosylation plays in the technical solution. For the invention patent of a protein which only defines the amino acid sequence, the technical effect of the invention is not allowed to be proved by the experimental data obtained by the glycosylated protein which is expressed in different host cells at all, which does not conform to the natural law of obtaining the protein by gene editing and does not conform to the characteristic that the patent claims of the invention usually only limit the amino acid sequence.
12. The impact of customized terms on whether the scope of protection of claims is clear
[Case No.]（2022）最高法知行终755号
[Judgment Summary] The use of customized terms in claims should generally be restricted. It should only be allowed when it is inappropriate to express it in words, or when using a customized term is clearer and more concise than using words, and the specific meaning of such model must be uniquely correct and reasonable from the claims and specifications so as to ensure that the scope of protection for the claim so defined is sufficiently clear.
13. The impact of obvious errors in claim drafting on whether the scope of protection is clear
[Case No.] （2022）最高法知行终858号
[Judgment Summary] If a person skilled in the art can determine after reading the claims and description that there are obvious errors in the drafting of the claims, and can determine the only correct answer, in principle, the scope of protection of the claims should be deemed to be clear. If a party claims that the scope of protection of a claim is unclear solely because of the obvious error, the people’s court will not support it.
14. Examination on the Time for Publication of Pictures and Videos on Internet Pages
[Case No.] （2022）最高法知行终469号
[Judgment Summary] In the patent authorization and invalidation process, the examination and judgment of the time for publication of pictures and videos on Internet webpages shall take into full consideration such factors as the reputational standing of websites, operation and management modes and technical means, and focus on the examination of the mechanisms for editing and publishing pictures and videos on webpages. A user may edit and modify the release time on his own, or the release time remains unchanged after the change of the content or disclosure status, among others, and such time cannot generally be taken as the release time of the relevant information without any other evidence to support it.
15. Novelty judgment of known chemical product use invention patent
[Case No.](2022）最高法知行终788号
[Judgment Summary] Where the use of a new chemical product as defined in a known chemical product use invention patent is merely described from different angles or verified by different methods the technical effects of the chemical product already determined by technicians in the art prior to the application date, the so-called new use does not constitute a distinctive technical feature of the patent from the prior art.
16. Judgment of novelty and inventiveness of utility model patents including method limitations
[Case No.] （2021）最高法知行终422号
[Judgment Summary] For a utility model patent claim that includes both product shape and structure and product manufacturing method, when judging its novelty and inventive step, if the method limitations enable the product to have a certain specific shape or structure, then the method limitations have a limiting effect on the scope of protection of utility model patent rights. When judging novelty and inventiveness, the specific shape and structure caused by the method should be compared with the shape and structure of the prior art, rather than comparing the method itself with the methods of the prior art.
17. Determination of similar and related technical fields in the judgment of inventiveness of utility model patents
[Case No.] （2022）最高法知行终41号
[Judgment Summary] When determining the technical field of a patent for utility model, the technical solution as defined in the claims shall be taken as the object, the title shall be taken as the starting point and the functions and uses of the patent technical solution shall be comprehensively considered. The technical field with similar functions and uses as the patent technical solution constitutes a similar technical field in the patent technical field; the technical field applied by the distinguishing technical characteristics of the patent technical solution and the closest technology constitutes a related technical field in the patent technical field.
18. Whether the purpose-limited title actually limits the scope of protection of the utility model patent right?
[Case No.] （2021）最高法知行终847号
[Judgment Summary] Whether a title is actually limiting the scope of protection of a claim shall be comprehensively determined in light of the type of the patent for utility model, by considering the relationship between the title and the technical solution as defined in the claim, whether the title has a substantial impact on the shape or structure of the object itself under protection, etc.
19. Impact of the coordination and cooperation relationship between distinguishing technical features and other technical features on improving the determination of motivation [to modify]
[Case No.] （2021）最高法知行终1226号
[Judgment Summary] In a determination of inventiveness, if there is a coordination and cooperation relationship between the claimed technical solution and the distinctive technical features of the closest prior art and other technical features, the technical effects generated by the distinctive technical features and the technical problems solved by them are premised on the technical effects of the other technical features, and the corresponding technical features of the closest prior art cannot produce the same technical effects based on the purpose of the invention and the inventive concept, then the skilled person in the art usually does not have an incentive to improve the prior art, and the claimed technical solution is not obvious to the skilled person in the art.
20. Technical inspiration for the substitution of chemical ingredients and traditional Chinese medicine ingredients in the invention of pharmaceutical compositions
[Case No.]（2021）最高法知行终593号
[Judge Summary] When judging whether there is technical inspiration for mutual substitution between chemical ingredients and traditional Chinese medicine ingredients in pharmaceutical composition inventions, it is usually necessary to consider not only the inherent role of the drug ingredients, but also the relationship between the chemical drug ingredients and other drug ingredients in the pharmaceutical composition.
21. Application of bioisosteric principle in determination of inventiveness
[Case No.] （2021）最高法知行终846号
[Judgment Summary] To determine whether the substitution between two groups in a pharmaceutical compound is common knowledge in the field, the bioisosteric principle can usually be considered. However, for non-classical bioisosteres, whether those skilled in the art will perform specific group substitutions usually requires existing technology that can prove the structure-activity relationship of such drugs as evidence, and the application of bioisosteric principle cannot be expanded arbitrarily.
22. Judgment of inventiveness in acupuncture patents
[Case No.] （2022）最高法知行终132号
[Judgment Summary] In the evaluation of inventiveness involving acupuncture and other traditional Chinese medicine patents, the cognitive characteristics of those skilled in the field and the treatment rules of traditional Chinese medicine should be combined to identify and distinguish technical features and prudently determine whether the technical solution is obvious, and, in particular, simple application of evaluation methods aiming at modern medical technologies shall be avoided and the degree of innovation of technical plans of traditional Chinese medicine shall not be underestimated.
23. Determination of publication time of existing designs
[Case No.] （2022）最高法知行终393号
[Judgment Summary] In the absence of other evidence to support the claim, the “date of manufacture” as stated in the nameplate on the existing design evidence cannot usually be directly determined as the “public date of sale” or “public date of use.”
24. Determination of whether the design has obvious differences
[Case No.] （2022）最高法知行终567号
[Judgment Summary] If a patented design is merely the design features of different parts of the same comparison design on the same type of products and is merged or replaced by using the customary design methods such as centering or symmetry, the patented design and the comparison design may generally be considered to have only subtle differences and generally have no unique visual effects.
25. Identification of inspiration to combine from existing design feature combinations
[Case No.] （2022）最高法知行终821号
[Judgment Summary] If the combination of existing design features to form a patent design needs to undergo relatively large changes and adjustments such as linkage and correspondence and transition and coordination to form a unity with coordinated appearance and function, generally the process of combination may be deemed to be beyond the knowledge level and cognitive ability of the general consumer. It is difficult to contemplate the combination of such design features. At this time, it may be determined that the existing design does not have such inspiration to combine.
26. Determination of “prior legal rights” in Article 23, Paragraph 3 of the Patent Law
[Case No.]（2022）最高法知行终821号
[Judgment Summary] In an administrative dispute over design patent authorization and determination, the rights or interests that have been obtained prior to the date of application for a patent and still legally exist when a request for invalidation is filed constitute “prior lawful rights” under Paragraph 3 of Article 23 of the Patent Law.
27. Eligibility of the parties to a patent ownership dispute as plaintiffs in an administrative dispute over patent invalidation
[Case No.] （2022）最高法知行终836号
[Judgment Summary]Where a party which claims rights in a patent ownership dispute case files an administrative lawsuit for the determination of patent right after the China National Intellectual Property Administration has declared the patent claims null and void in whole or in part, it may be determined that the plaintiff constitutes a potential interested party for the review decision on the alleged request for the declaration of invalidation and it is inappropriate to directly rule and dismiss the lawsuit on the ground that the plaintiff is unqualified. Where the party concerned in an administrative lawsuit for the determination of patent right depends on the outcome of the trial of the patent ownership dispute case and the patent ownership dispute has not been substantially settled, the trial of the administrative lawsuit for the determination of patent right may be suspended.
28. Determination that the invalidation review procedure violates the hearing principle
[Case No.] （2021）最高法知行终888号
[Judgment Summary] The invalidation requester only claimed that the patent did not possess novelty and therefore did not possess inventive step, and did not propose other specific reasons why the patent did not possess inventiveness. The China National Intellectual Property Administration did not inform the patentee of other reasons why the patent did not possess inventiveness. If the China National Intellectual Property Administration directly determines that the patent is novel but does not possess inventiveness without giving the patentee an opportunity to state its opinions on the specific reasons, and the patentee claims that the invalidation review process violates the hearing principle and constitutes a violation of statutory procedures, the People’s Court shall support the patentee.
29. Legal consequences of patent agencies and patent attorneys borrowing the name of others to request declaration of patent invalidity (straw man)
[Case No.]（2022）最高法知行终716号
[Judgment Summary] Where a patent agency or a patent agent requests invalidation of a patent on the basis of the name of another person, it constitutes substantial violation of Article 18 of the Patent Agency Regulation regarding the provision that a patent agency or patent agent shall not request invalidation of a patent in its own name, the people’s court may transfer the suspected clue of the violation to the relevant authority for handling in accordance with the law.
II. Patent ownership and infringement cases
30. The impact of restrictive statements on the protection scope of other claims that refer to the restricted claim
[Case No.]（2022）最高法知民终681号
[Judgment Summary] When a patentee makes a restrictive interpretation of a claim during the invalidation request review process, even if the claim is ultimately declared invalid, the relevant restrictive interpretation will still apply to other claims that reference the claim.
31. Identification and impact of induced evidence collection
[Case No.] （2022）最高法知民终2586号
[Judgment Summary] Where a patent right holder directly provides to others drawings containing the complete technical scheme of the patent in question and requires them to produce according to the drawings without declaring that the patent is involved, it constitutes evidence to induce others to infringe upon the patent right, but the people’s court shall not determine the infringing facts based only on such evidence.
32. Identification of the person responsible for infringement when the combined use of products falls within the scope of patent protection
[Case No.] （2022）最高法知民终2586号
[Judgment Summary] Where different products manufactured by the same subject can be combined for use and such combined use only falls within the scope of patent protection, the determination of the tort liability shall be made in accordance with the technical solution actually formed at the time of use and with special consideration given to whether the formation of such technical solution is determined by the consumer or the manufacturer. If the relevant products could be used separately originally, but consumers combine them for use according to their own needs, it may generally be determined that the technical plan of the combined products is determined by consumers, and the manufacturer shall not be held as the person liable for infringement. If the relevant products can not be used separately but must be matched with each other, and consumers combine the products for use according to the specific structure, functions, instructions for use, etc. of the products, it can generally be determined that the technical scheme of the products after combination is determined by the manufacturer, and the manufacturer shall be the person liable for infringement.
33. Identification of the manufacturer of the accused infringing product
[Case No.] （2021）最高法知民终2301号
[Judgment Summary] The product manufacturer in the sense of patent law does not only refer to the implementer of specific manufacturing activities. Organizers who organize production resources, coordinate upstream and downstream production links, and determine product technical solutions may also constitute the manufacturer of the accused infringing product.
34. Determination of display content and manufacturing behavior on e-commerce platforms
[Case No.]（2022）最高法知民终2021号
[Judgment Summary] The people’s court may comprehensively consider the product model, place of origin, quantity, and “manufacturer direct sales” and other descriptions in the product sales link displayed by the accused infringer on the e-commerce platform, and reasonably presume that the accused infringing product is manufactured by it .
35. Identification of equivalence of numerically limited technical characteristics
[Case No.] （2021）最高法知民终985号
[Judgment Summary] For technical features in invention or utility model patents that are limited by numerical values or continuously changing numerical ranges, the application of the principle of equivalents should not be absolutely excluded, but should be strictly limited. Where the different numerical values or ranges of numerical values use substantially the same technical means to achieve substantially the same functions and achieve substantially the same effects, and technicians in the art can relate to them without any creative labor, and at the same time, by taking into comprehensive consideration the technical field, type of invention, modification of claims and other relevant factors, if it is determined that the relevant technical features are equivalent to neither violate the public’s reasonable expectation of the scope of protection of claims nor unfairly protect patent rights, it may be determined that such technical features are equivalent.
36. Consideration of distinctive design features of patents in the judgment of approximation of design
[Case No.]（2021）最高法知行终728号
[Judgment Summary] When making a similarity judgment between a patented design and an alleged infringing design, the design features of the patented design that are different from existing designs should be determined, and such features should be regarded as the part that has a greater impact on the overall visual effect of the design. The parties may provide evidence or explain the above-mentioned distinguishing design features; if the parties provide insufficient evidence or explanations, the people’s court may determine the distinguishing design features based on the general consumer’s knowledge level and cognitive ability.
37. Handling of non-infringement defenses claimed by users and sellers based on the manufacturer’s right of prior use
[Case No.] （2022）最高法知行终839号
[Judgment Summary] Where, after the date of patent application, the user or seller uses, promises to sell, or sells the products made by the holder of the right of prior use in accordance with the law, claiming that the right of prior use of the manufacturer does not infringe upon the patent right, the people’s court shall support such a claim.
38. Determination of legal source defense in leasing relationship
[Case Number] （2022）最高法知民终2869号
[Judgment Summary]Where the alleged infringer is able to provide evidence to prove that the infringing product was leased by it, and the lease term has not expired, and it has paid a reasonable rent and does not know or should not know that the product is an infringing product, the people’s court may determine that its defense of lawful source is valid.
39. Determination of liability for cessation of infringement when patent rights are transferred in patent infringement litigation proceedings
[Case No.]（2022）最高法知民终1923号
[Judgment Summary] During the trial of a patent infringement dispute case, if the original patentee transfers the patent rights involved in the case, his qualifications as a litigation subject will not be affected. If the people’s court determines that the alleged infringement constitutes infringement, it shall support the original patentee’s request to stop the infringement in accordance with the law, unless the alleged infringer can prove that it has obtained permission from the current patentee.
40. Calculation of damages for patent infringement of non-publicly sold products
[Case No.]（2022）最高法知民终1584号
[Judgment Summary] The goal of damages for patent infringement is to try to restore the patentee to the state it would have been in if the infringement had not occurred, so as to maintain the motivation for innovation. For products that are not sold publicly, since infringement damages cannot be directly calculated based on their market sales, the products that are related to the implementation of patented technical solutions and have the most direct link in obtaining market benefits can be used as a reference for calculating infringement damages based on the specific case circumstances.
41. The impact of dishonest litigation behavior on determining reasonable expenses for rights protection
[Case No.] （2021）最高法知民终2480号
[Judgment Summary] If the accused infringer makes false statements or other dishonest behavior during the litigation process, this can be considered by the people’s court when determining the amount of the right holder’s reasonable expenditures for protecting his rights.
42. Identification and handling of abuse of intellectual property rights
[Case No.] （2023）最高法知民终235号
[Judgment Summary] The principle of good faith shall be followed in the exercise of intellectual property rights, and the lawful rights and interests of others shall not be damaged. When an intellectual property right is infringed upon, the right holder may exercise the right to sue according to law, but the right to sue shall also be exercised under the principle of good faith, in good faith, and in a prudent manner. Where an IP owner intentionally abuses intellectual property rights by such means as “inducing infringement,” “trapping to obtain evidence,” “misleading settlement,” and “deliberately suing twice for the same matter,” the people’s court shall take effective measures to regulate the abuse of intellectual property rights according to the law, and may, based on the circumstances and according to the Official Reply of the Supreme People’s Court on Issues concerning Defendants’ Claim for Compensation for Reasonable Expenses on the Ground of Plaintiff’s Abuse of Rights in Intellectual Property Right Infringement Lawsuits, order the IP owner to bear the litigation reasonable expenses of the opposing party.
43. Determination of the infringing product being warned when the specific product is not specified in the infringement warning
[Case No.] （2022）最高法知民终1744号
[Judgment Summary] Where the patent right holder’s infringement warning fails to specify the specific products to which it refers, the people’s court may, within the scope of products that the warned party has been negatively affected by the warning and in light of the litigation claims of the warned party, reasonably determine the specific product scope that shall be tried in a case on dispute over non-infringement upon patent right.
44. Determination of the correlation between the patented technical solution and the inventor’s own work or assigned work tasks in the original unit
[Case No.] （2022）最高法知民终2436号
[Judgment Summary] In a dispute over the ownership of a patent application right or a patent right, even if the inventor recorded in the patent application or the patent application document in question is not directly responsible for the research and development of the original entity on the patent in question or the patent application technology, but he is able to contact, control, or obtain the relevant technical information due to his work duties and powers at the original entity, he cannot simply deny the correlation between the technical solution of the patent in question or the patent application in question and the inventor recorded in the relevant document on his own work or the assigned work task at the original entity merely because the original entity has another person who is directly responsible for the research and development of the technology.
45. Should reasonable expenditures for rights protection be supported in ownership disputes?
[Case No.] （2022）最高法知民终2436号
[Judgment Summary] Disputes over patent application rights and patent right ownership generally do not fall within the scope of disputes for which reasonable expenses for protecting rights can be compensated by law. If the plaintiff requests an order to order the defendant to pay reasonable expenses for protecting rights, the people’s court will generally not support it.
46. The impact of the validity of patent rights on the trial of patent ownership dispute cases
[Case No.] （2021）最高法知民终2312、2395号
[Judgment Summary] Even if the application for patent is rejected or the patent right is declared invalid, the non-fault party may, on the basis of the result of the determination of the ownership of the rights and interests of the invention-creation in the case of disputes over the right to apply for the patent or the ownership of the patent right, claim another legal remedy from the at fault party. Therefore, in a dispute over the ownership of the right to apply for a patent or a patent right, if the patent application involved is rejected or the patent right is declared invalid, the people’s court may continue to try the case according to the specific circumstances of the case.
47. Handling of ownership disputes when the PCT application is terminated
[Case No.] （2023）最高法知民终428号
[Judgment Summary] Even if the effect of the PCT application for all PCT members including China has been terminated, the person claiming that it should actually enjoy the right to apply for the patent has an interest in a lawsuit over the ownership dispute over the right to apply for PCT with the publicized PCT applicant as the defendant, the people’s court may try the case.
48. It is not appropriate to split the claims to determine the ownership of the patent application rights separately.
[Case No.] （2021）最高法知民终825号
[Judgment Summary] There is only one right to apply for a patent based on one patent application. Under normal circumstances, it is not appropriate to split the claims and determine the ownership of the patent application rights separately.
49. Components of malicious filing of intellectual property litigation
[Case No.]（2021）最高法知民终1353号
[Judgment Summary] The following elements should be met to determine that an intellectual property lawsuit was filed in bad faith: the lawsuit filed obviously lacks a right basis or factual basis; the plaintiff is aware of this; it causes damage to others; and there is a causal relationship between the lawsuit filed and the resulting damages.
50. Determination of malicious filing of intellectual property litigation under induced evidence collection circumstances
[Case No.] （2022）最高法知民终2586号
[Judgment Summary] If a patentee, without other evidence proving that others have infringed or are about to infringe, actively induces infringement by providing technical solutions, and files an infringement lawsuit accordingly, interfering with or affecting the normal operations of others, it may be determined that this constitutes filing an intellectual property lawsuit in bad faith.
51. Determination of malicious filing of intellectual property litigation when rights are terminated
[Case No.]（2022）最高法知民终1861号
[Judgment Summary] If a patent owner knows that the patent rights involved in the case have been terminated due to non-payment of patent annuities and other reasons, but still files a patent infringement lawsuit and causes losses to others, it may be deemed to constitute an intellectual property lawsuit filed in bad faith.
52. Acceptance of drug patent linkage litigation arising from applications for registration of drugs during the “transition period”
[Case No.] （2023）最高法知民终4号
[Judgment Summary] For patent disputes arising from applications for registration of drugs after the implementation of the Patent Law but before the implementation of the Implementation Measures for the Early Resolution Mechanism for Drug Patent Disputes, the parties may file a lawsuit in accordance with the provisions of Article 76, Paragraph 1, of the Patent Law. Even if the parties are objectively unable to submit relevant materials because the relevant measures have not yet been implemented, it will not affect the people’s court’s acceptance according to law.
53. Litigation conditions for drug patent linkage litigation
[Case No.] （2023）最高法知民终4号
[Judgment Summary] In accordance with Paragraph 1 of Article 76 of the Patent Law, a party shall meet the following conditions when instituting a pharmaceutical patent linkage action: The party institutes an action during the course of review and approval of the marketing of the drug; The main party against which the action is filed is the applicant for the marketing license of the drug or the relevant patentee or interested party; The party institutes an action due to a dispute over the patent right relating to the drug for which the application for registration is filed; The content of the claims is to confirm whether the technical solution relating to the drug for which the application for registration is filed falls within the scope of protection of the patent right of the drug. In addition, the filing of such a lawsuit by the patentee or any interested party thereof shall be based on the legal and valid patent right.
54. Review and identification of registrable patent types in drug patent linkage litigation
[Case No.]（2023）最高法知民终7号
[Judgment Summary] In a drug patent linkage dispute case, where a party disputes whether the patent involved in the case is a registrable patent, the people’s court shall examine the dispute. Where a party files a lawsuit in accordance with Paragraph 1 of Article 76 of the Patent Law, the lawsuit shall be filed due to a dispute over the relevant patent right of the drug for which the application for registration is filed. If the party asserts that the right’s patent does not fall within the type of registrable patent as prescribed in the Measures for the Implementation of the Early Stage Resolution Mechanism for Drug Patent Disputes, the people’s court shall rule to dismiss the lawsuit.
55. Whether patents for compounds characterizing crystal structures and patents for compositions containing such compounds are registrable patent types
[Case No.] （2023）最高法知民终7号
[Judgment Summary] The types of patents that can be registered for chemical drugs as stipulated in the Implementation Measures for the Early Resolution Mechanism for Drug Patent Disputes should be patents for active pharmaceutical ingredient compounds, patents for pharmaceutical compositions containing active ingredients, and patents for medical uses of the first two. Compound patents that further characterize the crystal structure by crystal unit cell parameters, etc., on the basis of existing compounds expressed in molecular structures, patents for compositions containing the compounds, and patents for medical uses of the first two, are not yet part of the early resolution of drug patent disputes The types of patents that can be registered as specified in the implementation measures of the mechanism.
56. Determination of “relevant patents” in Article 76, Paragraph 1 of the Patent Law
[Case No.] （2023）最高法知民终1233、1234、1235号
[Judgment Summary] Patents that correspond to generic drugs that have been marketed in China and are registered on the patent information registration platform constitute “relevant patents” as referred to in Article 76, paragraph 1, of the Patent Law.
57. How should a generic drug applicant make a declaration if there is only a specification difference from the patented original drug?
[Case No.]（2023）最高法知民终1233、1234、1235号
[Judgment Summary ] Where the original research drug with which a generic drug only differs in specifications has been registered on the patent information registration platform, the generic drug applicant shall in principle make a declaration based on the registered relevant patent of the original research drug.
58. Handling of drug patent linkage cases when the technical solution of the original drug does not fall within the protection scope of the patent claims
[Case No.]（2023）最高法知民终2、3号
[Judgment Summary] Where, in a drug patent linkage litigation, a party disputes whether the original drug development technical solution falls within the scope of protection of the patent claim involved, the people’s court shall examine the dispute, and if the original drug development technical solution does not fall within the scope of protection of the patent claim asserted by the right holder or an interested party, the people’s court shall rule to dismiss the lawsuit.
III. Cases on new plant varieties
59. Judgment of novelty of new plant varieties
[Case No.]（2022）最高法知行终809号
[Judgment Summary] The behavior of an actor handing over the propagation materials of a variety to others for the purpose of trading and giving up his right to dispose of the propagation materials constitutes a sale that results in the loss of novelty of the variety applied for protection of new plant variety rights. If the breeder delivers the propagation materials of the applied variety in order to entrust others to produce seeds, and at the same time agrees that the produced propagation materials of the variety will be returned to the breeder, since the breeder essentially retains the right to dispose of the propagation materials of the variety, this generally does not result in the loss of novelty.
60. Determination of DUS testing locations in new plant variety authorization procedures
[Case No.] （2023）最高法知行终95号
[Judgment Summary] The determination of testing sites for distinctness, uniformity and stability (DUS) in the authorization procedure for new plant varieties shall be made in accordance with the instruction’s description of the area and environment where the variety is fit for growth and in combination with the variety type and the breeding process and methods in making determination with the standard that the trait of the variety can be guaranteed to be fully expressed.
61. Initiation and review scope of procedures for confirming rights to new plant varieties
[Case No.] （2023）最高法知行终95号
[Judgment Summary] After the new plant variety right is granted, any unit or individual may request invalidation of the granted new plant variety right, and the new plant variety review committee may also directly initiate the invalidation procedure ex officio. In the invalidation procedure of new plant variety rights initiated upon request, the new plant variety review committee only needs to review whether the authorized variety meets the authorization conditions based on the evidence and reasons submitted by the invalidation requester in principle, and does not undertake a comprehensive review of whether it meets all the authorization conditions for new plant variety rights.
62. Determination standards and proof of distinctness
[Case No.] （2023）最高法知行终132号
[Judgment Summary] In the review process for new plant variety rights, the criteria for determining distinctness should be consistent with the review process for new plant variety authorization. That is, the final determination of whether the authorized variety is distinct should, in principle, be determined by field planting tests. Where there is no obvious difference between the protected variety and a known variety upon identification by gene fingerprint, such identification may serve as an important reference for determining that the protected variety does not have distinctness.
63. The person responsible for the adverse consequences of submitting wrong standard samples
[Case No.] （2023）最高法知行终132号
[Judgment Summary] For a variety for approval, the submitted standard sample is the final basis for determining the authenticity of the variety. The adverse consequences of incorrectly submitting a standard sample should generally be borne by the entity that submitted the standard sample.
64. Determination of the licensing scope of new plant variety rights
[Case No.]（2022）最高法知民终605号
[Judgment Summary] In principle, variety rights holders cannot include rights that they do not enjoy into the scope of licensing. If the propagation material of a new plant variety is sold by the variety right holder or its authorized unit or individual and is licensed to be reused to produce and propagate the propagation material of another variety, the act of selling the propagation material of another variety usually does not constitute infringement. The holder of a variety right has no right to claim rights over the sale of propagation materials of another variety.
65. What to do if the approval authority fails to save standard samples
[Case No.] （2022）最高法知民终568号
[Judgment Summary] For a new plant variety for which the examination and approval authority has not preserved the standard sample nor the genotype information, if the variety rights holder is able to preliminarily prove through sufficient explanation a commitment or provide other supporting evidence that the sample of propagation material provided by it is the propagation material of the new plant variety, the sample of propagation material provided by it may be taken as the basis for determining the protection of the object unless the alleged tortfeasor has evidence to the contrary or the reasonable grounds are sufficient to rebut.
66. The impact of the effectiveness of administrative penalty decisions on the effectiveness of administrative law enforcement evidence
[Case No.] 2022）最高法知民终947号
[Judgment Summary] Even if the administrative penalty decision made by the seed administrative law enforcement agency is revoked, the evidence formed during the administrative law enforcement process will not automatically lose its evidence qualification and probative power. If the relevant evidence is verified to be authentic, legal and relevant, it can still be used as the basis for determining facts in relevant civil tort cases.
67. Infringement comparison of new plant varieties for which there are no molecular marker detection standards
[Case No.]（2022）最高法知民终568号
[Judgment Summary] To determine whether a new plant variety is identical with an alleged infringing variety in terms of characteristics and for some varieties for which there is no national or industrial standard for the detection of molecular markers such as gene fingerprints, when examining the probative power of the inspection report using the method of molecular marker detection such as gene fingerprints, a comprehensive analysis of all relevant evidence shall be conducted with emphasis on examining whether the sample range of primer sources and the representativeness thereof are consistent with scientific laws and whether the establishment of gene fingerprints is sufficient to scientifically and accurately distinguish different varieties.
68. Identification of varieties when “one product has multiple names”
[Case No.] （2022）最高法知民终269号
[Judgment Summary] Under the Seed Law and relevant administrative regulations regarding “one product and one person” a variety should use the same name when applying for protection of new plant varieties examination and approval registration of varieties as well as promotion and sale of the same variety. Where the name of a variety in respect of which a new plant variety is granted is different from that of the variety that has passed the variety examination and approval, it shall be inferred that the two varieties are not the same. Where, in an action for infringement of the right to a new plant variety, the variety owner claims that the variety with a different name is in fact the same variety, he shall provide sufficient evidence to prove the claim and explain the reasons for failure to rename the variety in a timely manner and in accordance with the law.
69. Duty of care when selling new plant variety materials with propagation ability
[Case No.]（2022）最高法知民终1262号
[Judgment Summary] Where the alleged infringer sells materials of new plant varieties with reproductive capacity, it fails to pay reasonable attention to the nature of the subject of purchase and the use thereof after purchase, causing the use of such materials as reproductive materials and substantially allowing the infringement to occur, such acts constitute infringement upon the rights to new plant varieties.
70. The organizer’s liability for infringement of all new plant varieties organized
[Case No.] （2021）最高法知民终2166号
[Judgment Summary] The accused infringer who plays an organizing and leading role in the production and reproduction of allegedly infringing breeding materials by multiple people shall bear joint and several liability for all accused infringing acts directly carried out by the organizer.
71. Discretionary determination of the base amount of punitive damages
[Case No.] （2022）最高法知民终2907号
[Judgment Summary] Although punitive damages require a certain compensation base as a premise, the calculation accuracy of the compensation base should not be too stringent. A reasonable compensation base can be determined based on the existing evidence.
72. Basis for identification of variety breeding time
[Case Number] （2020）最高法知民终1341号
[Judgment Summary] When determining the time of variety breeding, the earliest time when the breeder developed a plant variety with specificity, consistency, and stability shall prevail. The specificity, consistency, and stability of plant varieties can be proven through breeding records, variety test reports, etc.
IV. Technical trade secret cases
73. Infringement remedies and legal application of commercial secret contract claims
[Case No.] （2021）最高法知民终814号
[Judgment Summary] Where a party has contractual claims on trade secrets that should have been delivered by others but have not been delivered according to law, and a third party intentionally infringes upon the contractual claims on trade secrets, or unlawfully seizes the trading opportunities of creditors and damages the competitive advantage of the third party, the people’s court may, in accordance with the provisions of Article 2 of the Anti-Unfair Competition Law, determine that such conduct constitutes unfair competition.
74. Review of agreements related to technical secrets and the constituent elements of technical secrets
[Case No.] （2021）最高法知民终1530号
[Judgment Summary] Even if the parties have reached an agreement on the formation, ownership, infringement, and liability of technical secrets by concluding a settlement agreement or any other means, in a subsequent dispute, the people’s court shall examine and determine whether the technical information claimed by the parties constitutes technical secrets in the meaning of the Anti-Unfair Competition Law.
75. Identification of confidentiality measures for company executives
[Case No.] （2021）最高法知民终312号
[Judgment Summary] If directors, supervisors, or senior managers claim that confidentiality measures are invalid on the grounds that the company only has confidentiality agreements with ordinary employees and has not signed a separate confidentiality agreement with them, the people’s court will generally not support it.
76. Presumption of infringement of all technical secrets
[Case No.]（2021）最高法知民终1031号
[Judgment Summary] In a dispute over infringement on technical secrets, where the right holder claims to protect the technical information in the whole set of technical process drawings, the alleged infringer has access to the right holder’s drawings, and the accused infringer’s drawings completely reflect the technical process, some of the information is substantially the same as the information in the right holder’s drawings, even the non-universal symbols are consistent with each other or the typos are consistent with each other, among others, it is difficult for the accused infringer to reasonably explain such information, it may be presumed that the infringer unlawfully obtained and used the technical information in the whole set of technical process drawings of the right holder.
77. Determination of disclosure of technical secrets
[Case No.]（2022）最高法知民终901号
[Judgment Summary] If the accused infringer performs the act of providing technical secret information or carrier of the information to a specific or unspecified party, causing the technical secret to escape the control of the right holder and become known to others, the people’s court may determine that this behavior constitutes a disclosure and infringement of the technical secret.
78. Determination of improved use and negative use of trade secrets
[Case No.] （2022）最高法知民终26号
[Judgment Summary] Where the information actually used by the alleged infringer was modified or improved on the basis of the trade secret information involved in the case, or was obtained by evading the wrong research and development route from the trade secret information involved in the case, the people’s court may, according to the specific circumstances, determine that the alleged infringer has used the trade secret information involved in the case in an improved manner or in a passive manner, even though it is somewhat different or completely different from the trade secret information involved in the case.
79. Determination of technical secret infringement by legal representative
[Case No.] （2021）最高法知民终1031号
[Judgment Summary] In cases involving technical secret infringement disputes, if the infringement reflects both the will of the company and the personal will of the legal representative, it can be determined that the legal representative and the company jointly committed the infringement. If the legal representative does not directly commit the infringement, and the company’s infringement does not reflect the legal representative’s personal will, it cannot be determined that the legal representative and the company constitute joint infringement.
80. Liability determination of the legal representative as a channel for enterprises to obtain technical secrets
[Case No.]（2021）最高法知民终1629号
[Judgment Summary] Where the alleged infringing enterprise directly commits the infringement act by using the technical secret, and the legal representative of this enterprise is the channel for this enterprise to obtain the technical secret involved in the case, it may be determined in principle that the legal representative and the enterprise have committed joint infringement, and the liability for infringement cannot be exempted simply on the ground that there is no direct evidence to prove that the legal representative has committed the infringement act.
81. Application of liability for cessation of infringement in customer list business secret infringement cases
[Case No.] （2021）最高法知民终312号
[Judgment Summary] The core of prohibiting infringement on the business secrets in a client list is prohibiting the infringer from using such business secrets as a “springboard,” which can save the time and money compared to obtaining the business secrets in a proper way, and thus weaken the competitive advantage of the right holder. Where the alleged infringer has been away from the original entity for a relatively long period of time, and as the passage of time and with changes in the market supply and demand, the competitive advantage that can be brought by the business secrets he has obtained from the original entity has obviously weakened or even disappeared, the people’s court may no longer make a judgment to cease the use of such business secrets according to the circumstances.
82. Application of destruction of equipment in cases of infringement of technical secrets
[Case No.] （2022）最高法知民终816号
[Judgment Summary] In cases involving disputes over infringement of technical secrets, if the alleged infringing equipment constitutes the carrier of technical secrets, it is usually necessary to order the destruction of the equipment. The method of destruction includes taking measures such as substantial transformation, and the transformation shall be limited such that the equipment no longer has the property of being a carrier of technical secrets.
When the accused infringing equipment is not a carrier of technical secrets, but only a tool for infringement of technical secrets, since destroying the equipment is neither a necessary measure to prevent the continued occurrence of the infringement nor conducive to saving resources, it is usually neither necessary nor reasonable for the equipment to be destroyed, unless there is evidence to prove that the infringing equipment is exclusively for infringement, i.e., it has no other substantial non-infringing uses.
83. Compensation for repair, reconstruction and strengthening of confidentiality measures
[Case No.] （2022）最高法知民终945号
[Judgment Summary] In a dispute over infringement of technical know-how, the expenses incurred by the obligee for repairing or rebuilding the original confidentiality measures that were damaged due to the infringement and the expenses incurred for reasonably strengthening the confidentiality measures to mitigate and prevent further damages may be included in the amount of compensation for damages caused by the infringement.
84. Coordinated settlement of disputes over infringement of intellectual property rights and disputes over infringement of technical secrets
[Case No.]（2022）最高法知民终945号
[Judgment Summary] With regard to the same infringement of computer software, if the people’s court has determined that the alleged infringer has infringed upon the copyright of computer software and ordered the infringer to assume civil liability and the right holder brings an action on the ground that the infringement infringes on technical secrets and requests the same infringer to assume civil liability, the action of infringement of technical secrets and the action of infringement of computer software copyright shall generally not constitute repeated actions. The people’s court shall not dismiss such actions but shall avoid repeatedly imposing civil liability on the alleged infringer.
V. Monopoly cases
85. – 89. [Non-IP]
90. Exercising intellectual property rights and determining the effect of excluding and restricting competition
[Case No.] (2020) （2020）最高法知民终1140号
[Judgment Summary] When the alleged monopolistic conduct involves the exercise of effective intellectual property rights, the effects of lawful and legitimate exercise of intellectual property rights need to be taken into account in the analysis of the effects of eliminating or restricting competition from the alleged monopolistic conduct. If the so-called effect of excluding or restricting competition is the inevitable result of lawfully exercising certain intellectual property rights and does not exceed the scope of the legal effects vested in such intellectual property rights by law, it does not fall within the effect of excluding or restricting competition in the sense of the Anti-monopoly Law.
91. – 93. [Non-IP]
VI. Computer software cases
94. Eligibility of the administrator as a plaintiff in a copyright infringement case involving “open source software”
[Case No.] （2021）最高法知民终2063号
[Judgment Summary] Project managers of open source software generally play a decisive role in the formation of software source code. The voluntary participation of the contributor in the open source project shall be deemed as tacit consent of the contributor for the project manager to file a infringement lawsuit. Project managers generally do not need to be authorized by other contributors, they can sue in their own name to protect rights.
95. Determination of the basis of rights in cases involving “open source software” copyright infringement
[Case No.] （2021）最高法知民终51号
[Judgment Summary] In cases of computer software copyright infringement, whether the developer of the software involved failed to fulfill its open source obligations and whether he or she enjoys the copyright of the software involved based on his or her original contribution are not necessarily relevant. The people’s court shall generally not support the defendant’s argument that the software developer involved in this case does not infringe upon the copyright of the software involved in this case only on the ground that the software developer involved in this case did not open source according to the open source agreement.
96. Determination of computer software copyright infringement for “partial copying” behavior
[Case No.] （2021）最高法知民终51号
[Judgment Summary] Any original expression of computer software that can achieve relatively independent functions is protected by copyright and the quantity or proportion of reproduction does not necessarily affect the determination of the nature of the infringement.
97. Determination of the Act of Internet Users to Infringe upon Copyright as the Act of Network Platform Operators
[Case No.] （2021）最高法知民终51号
[Judgment Summary] To determine whether a content provision made by an internet user can be deemed an act of an internet platform operator, the nature of the internet platform, the identity of the internet user and its relationship with the internet platform, the specific content of the alleged infringing act and other facts may be analyzed. If there is a management or control relationship between the network platform and network users, network users can be considered as the network platform to carry out this behavior based on their administrator identity, if they engage in long-term and stable posting related to the network platform, whether there is employment relationship between the two does not affect the nature of the behavior determination.
VII. Technology intellectual property contract cases
98. Identification and handling of malicious collusion to harm national interests
[Case No.] （2021）最高法知民终1311号
[Judgment Summary] If a party defrauds the government of special funds for technology research and development in the name of technology development cooperation and makes false expressions of intention, this constitutes malicious collusion to harm national interests. The people’s court should determine that the technology development contract is invalid and transfer suspected criminal evidence to the relevant authorities for processing.
99. Validity determination and handling of patent agency contracts involving fictitious or fabricated inventions and creations
[Case No.]（2021）最高法知民终1068号
[Judgment Summary] Patent applications should be based on real invention and creation activities. For contracts with fictitious or fabricated inventions and creations as the subject matter, the People’s Court shall determine them to be invalid and transfer suspected criminal evidence to relevant authorities for processing in accordance with the law.
100. What to do after a contract is deemed invalid
[Case No.] （2021）最高法知民终2005号
[Judgment Summary] After the validity of a civil legal act is denied, the next step of handling must be determined based on the nature of the act, the reasons for the invalidity, etc. The issue of return of property, compensation at a discount, or compensation for losses does not exist in all circumstances. If the law provides otherwise for the nature and handling of relevant property, it shall be handled in accordance with its provisions.
101. Treatment of criminal acts concealed by signing false computer software development contracts
[Case No.] （2022）最高法知民终1408号
[Judgment Summary] Where evidence in a case shows that the true purpose of the parties’ conclusion and performance of a so-called computer software development contract is to conceal the commission of a crime, the people’s court shall determine that the nature of the legal relationship at issue between the parties is not a computer software development contract dispute and render a ruling to dismiss the lawsuit in accordance with law and transfer the suspected criminal evidence to the relevant authority for handling.
VIII. Procedural cases
102. Impact of the alleged act on the determination of the jurisdictional link at the place of the infringement
[Case No.]（2022）最高法知民辖终310号
[Judgment Summary] The alleged infringement in the place where the infringement is committed should usually be the alleged infringement in the case. If the infringement corresponding to the place where the infringement is committed is not the alleged infringement in the case, it has no substantial connection with the dispute involved and does not constitute a jurisdictional link of the case.
103. Determination of the place of infringement of third-party delivery online sales
[Case No.] （2023）最高法知民辖终170号
[Judgment Summary] Where the alleged infringing product is sold through the Internet and the seller purchases the corresponding goods from a third party only after the buyer submits the order and instructs the third party to mail the goods directly to the buyer, the delivery by the third party shall be determined as delivery by the seller and the place of delivery shall be determined as the place of delivery of the seller which may constitute the jurisdictional link for the infringement case in which the seller is the defendant.
104. Advance ruling on jurisdictional objections
[Case No.] （2023）最高法知民辖终170号
[Judgment Summary] Under the circumstance that there are multiple defendants in a case, each defendant may separately exercise their respective procedural rights to raise an objection to jurisdiction. The court accepting the case may, on the premise that the litigation rights of other defendants are not affected, make an earlier ruling on the objection to jurisdiction raised by some defendants.
The original text is available here (Chinese only).
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