Patent

Letter of The Supreme Court on Whether A Court Can Adjudge A Patent As A Dependent Patent Or Double Patenting In A Patent Infringement Law Suit

Yunnan High People's Court: December 6, 2004

This is to acknowledge the receipt of your Inquiry (No. Yungaofabao [2004] 91) On Whether A People's Court Could Adjudge A Patent Owned By A Third Party Having No Independent Claim As A Dependent Patent. Upon review and in consideration of the specific circumstances of the case under discussion, we reply as follows:

When handling a patent infringement case, a people's court does not have to determine in adjudication whether the patent concerned owned or exploited by the interested party is a dependent patent. Nor is it appropriate for the court to judge whether the patent falls within "double patenting". However, in the light of the First-to-File Principle prescribed in the Patent Law, protection shall be provided to the patent which was filed first. No matter whether the accused infringing object is patented, as long as the plaintiff's patent is filed earlier, adjudication as to whether the defendant is liable for patent infringement shall be made by judging whether the technical features of the accused infringing object fully cover the protection scope of the plaintiff's patent right. When making technical comparison for judgment, one should compare all the essential technical features specified in the claims of the plaintiff's prior-filed patent with the corresponding technical features of the accused object. Where the accused object embodies all the technical features specified in the (plaintiff's) claims, or where certain technical features of the accused object, although different from the corresponding technical features specified in the (plaintiff's) claims, are equivalent to those specified in the claims according to the Doctrine of Equivalence, the people's court shall adjudicate that the accused object falls within the protection scope of the (plaintiff's) patent right and that the defendant is liable for patent infringement.
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