raw law translation; will be refined; work in process
Supreme People's Court to hear patent infringement disputes in cases of application of the law interpretation of a number of issues
December 21, 2009 the Judicial Committee of Supreme People's Court passed the first 1480 meeting. The People's Republic of China Supreme People's Court Notice"Supreme People's Court on the trial of patent infringement disputes in cases of application of the law interpretation of a number of issues" was December 21, 2009 the Judicial Committee of Supreme People's Court passed the first meeting of 1480, is hereby announced that since January 1, 2010 shall come into force.
December 28, 2009
For the correct hear patent infringement disputes, according to "The People's Republic of China Patent Law," "The People's Republic of China Civil Procedure Law" and other relevant laws and regulations, combined with the actual trial, the enactment of this interpretation.
Article 1. People's right to argue should be based on the claims, according to the Patent Law the provisions of the first paragraph of Article 59th to determine the scope of patent protection. The right people in the first instance the court before the end of the debate claim the right to change their requirements, the people's court should be permitted. Who advocated the rights of dependent claims to determine the scope of patent protection, the people's court should be recorded in the dependent claims and references additional technical features of the technical features of the claims records to determine the scope of patent protection.
第一条 人民法院应当根据权利人主张的权利要求，依据专利法第五十九条第一款的规定确定专利权的保护范围。权利人在一审法庭辩论终结前变更其主张的权利要求的，人民法院应当准许。 权利人主张以从属权利要求确定专利权保护范围的，人民法院应当以该从属权利要求记载的附加技术特征及其引用的权利要求记载的技术特征，确定专利权的保护范围。
Article 2. The people's court shall, according to claims records, combined general and technical personnel in this field read the description and drawings after the understanding of the claims to determine the first paragraph of Article 59th of patent law claim under content.
Article 3. The people's court for the claim, can use the description and drawings, the claims related to the book claims, the patent examination of the file for explanations. Description of the right to demand a special definition language, and its specifically defined. By the above method is still not entirely clear meaning of the claims, and can combine books, textbooks, and other literature as well as the public know that general and technical personnel in this area is commonly understood interpretation.
第三条 人民法院对于权利要求，可以运用说明书及附图、权利要求书中的相关权利要求、专利审查档案进行解释。说明书对权利要求用语有特别界定的，从其特别界定。 以上述方法仍不能明确权利要求含义的，可以结合工具书、教科书等公知文献以及本领域普通技术人员的通常理解进行解释。
Article 4. For the right to request the functional effects of expression or the technical characteristics of the people's court should be combined with the description and drawings describe the function or the effect of the specific implementation methods and their equivalent to the implementation of the method to determine the technical characteristics of content.
Article 5. For only in the description or drawings described in the claims are not recorded in the technical program, right in cases of patent infringement disputes, will be included in the scope of patent protection, the people's court not support it.
Article 6. The patent applicant, the patentee or the invalidation of a patent licensing program, through the claims, specification changes or a statement of opinion and give up the technical program, right in cases of patent infringement disputes in turn included in the scope of patent protection the people's court not support it.
Article 7. The people's court to determine whether the respondent infringing technology programs fall into the scope of patent protection, should review the claims of the right to argue all the technical features of the record. Respondent infringing technology program contains all of the claims recorded in the same or equivalent technical features of the technical features of the people's court shall identify the scope of protection of their falling into the patent; respondent infringing technology, the technical features of the program and the right to demand records of all technical features compared to the lack of claims recorded in more than one technical features, or have more than one technical characteristics are not the same does not mean that the people's court shall be determined that they are not falling into the scope of patent protection.
第七条 人民法院判定被诉侵权技术方案是否落入专利权的保护范围，应当审查权利人主张的权利要求所记载的全部技术特征。 被诉侵权技术方案包含与权利要求记载的全部技术特征相同或者等同的技术特征的，人民法院应当认定其落入专利权的保护范围；被诉侵权技术方案的技术特征与权利要求记载的全部技术特征相比，缺少权利要求记载的一个以上的技术特征，或者有一个以上技术特征不相同也不等同的，人民法院应当认定其没有落入专利权的保护范围。
Article 8. Design patent products with the same or similar types of products, use and licensing design identical with or similar design, the people's court finds that the defendant should be caught infringing the design patent law under the second paragraph of Article 59th Design Patent of the right to protection.
Article 9. The people's court should be based on the use of exterior design products, determined whether the same or similar product categories. Determine the product's use, can refer to a brief description of the design, the international design classification, product features and product sales, the actual use conditions and other factors.
Article 10. The people's court should be based on the design of the patented product the average consumer's level of knowledge and cognitive abilities, to determine whether the same or similar design.
Article 11. The people's court finds that the design is the same or similar, it should be mandated design, sued the design infringement design features in order to design integrated to determine the overall visual effect; for the main technical functions determined by design features, as well as on the overall visual effect does not affect the product material, the internal structure characteristics, should not be considered.The following circumstances, usually designs the overall visual effect is more influential:(A) products normally use direct observation to be easily compared with other parts of the site;(B) authorize the design is different from the existing design of the design features in relation to the design authorized by the other design features.Infringing the design and authorized the respondent in the overall visual design were no differences in the people's court shall be determined between the same; in the overall visual effect, no substantive difference, it should be found between the two approximation.
第十一条 人民法院认定外观设计是否相同或者近似时，应当根据授权外观设计、被诉侵权设计的设计特征，以外观设计的整体视觉效果进行综合判断；对于主要由技术功能决定的设计特征以及对整体视觉效果不产生影响的产品的材料、内部结构等特征，应当不予考虑。 下列情形，通常对外观设计的整体视觉效果更具有影响： （一）产品正常使用时容易被直接观察到的部位相对于其他部位； （二）授权外观设计区别于现有设计的设计特征相对于授权外观设计的其他设计特征。 被诉侵权设计与授权外观设计在整体视觉效果上无差异的，人民法院应当认定两者相同；在整体视觉效果上无实质性差异的，应当认定两者近似。
Article 12. Would violate the invention or utility model patent products as components to create another product, the people's court shall identify the provisions of Article 11. belongs to the Patent Law the use of behavior; selling the other products, the people's court shall be determined to be the first Patent Law 11 provisions of sales practices.Would violate a design patent products as components to create another product and sell the people's court shall be found belonging to the provisions of the Patent Law Article 11. of the sales practices, but the violation of patent right for design products in the other product only with the exception of technical functions. For the preceding two paragraphs of the case, the defendant infringer division of labor between the people's court shall be recognized as contributory infringement.
第十二条 将侵犯发明或者实用新型专利权的产品作为零部件，制造另一产品的，人民法院应当认定属于专利法第十一条规定的使用行为；销售该另一产品的，人民法院应当认定属于专利法第十一条规定的销售行为。 将侵犯外观设计专利权的产品作为零部件，制造另一产品并销售的，人民法院应当认定属于专利法第十一条规定的销售行为，但侵犯外观设计专利权的产品在该另一产品中仅具有技术功能的除外。对于前两款规定的情形，被诉侵权人之间存在分工合作的，人民法院应当认定为共同侵权。
Article 13. For the use of a patented process to obtain the original product, the people's court shall be recognized as the Patent Law in accordance with provisions of Article 11. patented product directly obtained.For the above-mentioned original product for further processing, treatment and follow-up of products obtained behavior, people's court shall be determined to be the use of patent law in accordance with the provisions of Article 11. of the patented product obtained directly.
第十三条 对于使用专利方法获得的原始产品，人民法院应当认定为专利法第十一条规定的依照专利方法直接获得的产品。 对于将上述原始产品进一步加工、处理而获得后续产品的行为，人民法院应当认定属于专利法第十一条规定的使用依照该专利方法直接获得的产品。
Article 14. Respondent into the scope of patent protection all the technical features, with an existing technology in the program of the same or corresponding technical features no substantive difference in the people's court finds that respondent should be the implementation of the technical part of the infringer 60th Patent Law two provisions of existing technologies.Sued an existing design infringement design and the same or not materially different, the people's court finds that respondent should be designed to implement part of the infringer of patent law provided for in Article Sixty-existing designs.
第十四条 被诉落入专利权保护范围的全部技术特征，与一项现有技术方案中的相应技术特征相同或者无实质性差异的，人民法院应当认定被诉侵权人实施的技术属于专利法第六十二条规定的现有技术。 被诉侵权设计与一个现有设计相同或者无实质性差异的，人民法院应当认定被诉侵权人实施的设计属于专利法第六十二条规定的现有设计。
Article 15. Respondent infringer illegally acquired technology or design ideas with the right to defend before the people's court not support it.One of the following circumstances, the people's court shall be found belonging to the Patent Law 69th section (b) provides that already ready manufacture, use of the necessary preparations for:(A) has completed the implementation of the invention necessary to process the main technical drawings or documents;(B) has been made or purchased to implement the major inventions of the necessary equipment or raw materials.Patent Law 69th section (b) the provisions of the original scope, including patent applications, the production scale of a few days ago and the use of existing production equipment or production preparation according to the existing scale of production can be achieved.First with the right people in the patent application in the future that it has implemented or will be ready to implement the necessary preparations for the transfer of technology or design, or permit others to commit, the defendant infringer to claim that implementation of the acts were within the original scope to continue to implement the people's court did not support , but the technology or design and the original transfer or inheritance of business, except in conjunction.
Article 16. Patent Law 65th People's Court pursuant to the provisions of the first paragraph of Article infringer to determine the benefits derived by the infringement, the infringer shall be limited to acts of infringement of patents received benefits; for other benefits arising from the right, it should be a reasonable deduction.Violation of invention, utility model patent right of the product is another product of the parts, the people's court should be based on the value of the parts itself, and in the realization of the role of product profits and other factors to determine a reasonable amount of compensation.A design patent infringement for the packaging of products, the people's court shall, according to the packaging itself was packaged in the realization of the value of its profits from the products in the role of other factors to determine a reasonable amount of compensation.
第十五条 被诉侵权人以非法获得的技术或者设计主张先用权抗辩的，人民法院不予支持。 有下列情形之一的，人民法院应当认定属于专利法第六十九条第（二）项规定的已经作好制造、使用的必要准备： （一）已经完成实施发明创造所必需的主要技术图纸或者工艺文件； （二）已经制造或者购买实施发明创造所必需的主要设备或者原材料。 专利法第六十九条第（二）项规定的原有范围，包括专利申请日前已有的生产规模以及利用已有的生产设备或者根据已有的生产准备可以达到的生产规模。 先用权人在专利申请日后将其已经实施或作好实施必要准备的技术或设计转让或者许可他人实施，被诉侵权人主张该实施行为属于在原有范围内继续实施的，人民法院不予支持，但该技术或设计与原有企业一并转让或者承继的除外。
Article 17. Product or manufacture of products, technical solutions before the date of the patent application known to the public at home and abroad, the people's court shall be satisfied that the product does not belong to the first paragraph of the Patent Law 第六十一条of new products.
Article 18. The right to the patent infringement issue a warning to others, being warned in writing by the person or interested person the right to exercise the right of appeal despite warnings from the right to receipt of the written Urgency, or within one month from the date of the written despite warnings from the date of issue of two months, the right to warn people not to withdraw is not filed suit, which was a warning to the people's court or interested party requests confirmation of its behavior is not patent infringement litigation, the people's court shall accept.
Article 19. Acts of the defendant patent infringement occurred in the October 1, 2009 before the people's court application of patent law before the amendment; took place in October 1, 2009 after the people's court application of the revised patent law. Acts of the defendant patent infringement occurred in the October 1, 2009 prior to and continued until October 1, 2009 since, based on revised pre-and revised the provisions of the Patent Law shall be liable for infringing per capita, the court applied the revised patent law to determine the amount of compensation.
第十九条 被诉侵犯专利权行为发生在2009年10月1日以前的，人民法院适用修改前的专利法；发生在2009年10月1日以后的，人民法院适用修改后的专利法。 被诉侵犯专利权行为发生在2009年10月1日以前且持续到2009年10月1日以后，依据修改前和修改后的专利法的规定侵权人均应承担赔偿责任的，人民法院适用修改后的专利法确定赔偿数额。
Article 20. The Court previously released the relevant judicial interpretations inconsistent with this interpretation, to this interpretation.