(Adopted at the 1676th Session of the Trial Committee of the Supreme People's Court on January 25, 2016 and effective as of April 1, 2016)

With a view to ensuring the correct trial of cases involving patent infringement disputes, these Interpretations are formulated pursuant to the provisions of the Patent Law of the People's Republic of China, the Tort Liability Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other relevant laws and in light of judicial practices.

Article 1 Where a written claim of rights contains two or more rights, the right holder concerned shall specify in the complaint the rights based on which the alleged infringer is being sued for patent infringement. Where such rights are not specified or not clearly stated in the complaint, the competent people's court shall require the right holder to specify the rights concerned; and, where the right holder still fails to do so after relevant situations have been explained thereto, the competent people's court may rule to dismiss the lawsuit.

Article 2 Where the right claimed by a right holder in a patent infringement lawsuit is declared invalid by the Patent Re-examination Board, the people's court trying the case involving the patent infringement disputes may render a ruling to dismiss the lawsuit filed by the right holder on the basis of the invalid claim of right.

The right holder may file a lawsuit separately if there is evidence proving that the decision to declare the above claim of right invalid is revoked by a binding administrative judgment.

If the patentee files a lawsuit separately, the period for limitation of action shall be calculated from the date of service of the administrative judgment stated in Paragraph 2 of this Article.

Article 3 Where, as a result of obvious violation of Paragraph 3 or Paragraph 4 of Article 26 the Patent Law, written descriptions cannot be used to explain the claims of rights, which does not fall within the circumstances specified in Article 4 hereof and based on which request is made for declaring the patent invalid, the competent people's court trying the case involving the patent right dispute shall in general rule to suspend the lawsuit; if no request is filed for declaring the patent invalid within a reasonable period of time, the people's court may determine the scope of patent protection according to the written claim of rights.

Article 4 Where ordinary technical personnel in the relevant field can clearly arrive at only one unique understanding by reading written claims of rights, written descriptions and attached drawings despite ambiguity in terms of grammar, wording, punctuations, graphics, symbols, etc. in the written claims of rights, written descriptions and the attached drawings, the competent people's court shall make determination according to such unique understanding.

Article 5 When a people's court determines the scope of patent protection, the technical features as described in the preamble and the characterizing portion of the independent claims, and in the reference section and the limitations of the dependent claims shall all be defining.

Article 6 The competent people's court may employ another patent which is related to the patent involved in the case in respect of divisional application, and its patent examination files and binding judgments/rulings on patent licensing affirmation to interpret the rights claimed for the patent involved in the case.

Patent examination files shall include the written materials submitted by patent applicants or patentees during the process of patent examination, re-examination and declaration of invalidity, as well as the notices on examination opinions, meeting minutes, oral hearing records, binding written examination decisions on patent re-examination requests, written examination decisions on the requests for declaring patents invalid, etc. issued by the patent administrative department of the State Council and its Patent Re-examination Board.

Article 7 As regards an exhausted claim of rights for a combination, if an alleged infringing technical solution contains additional technical features on the basis of all the technical features in the claim of rights, the competent people's court shall determine that the alleged infringing technical solution does not fall under the scope of patent protection, unless the additional technical features are unavoidable impurities in normal quantities.

An exhausted claim of rights for a combination referred to the preceding paragraph shall generally not include the claim of rights for traditional Chinese medicine composition.

Article 8 Functional features are technical features that only serve to define structures, compositions, steps, conditions or the relations thereof according to their functions or effects in the relevant invention, unless ordinary technical personnel in this field are able to directly and clearly determine the specific exploitation methods for achieving such functions or effects by reading the claim of rights alone.

Where, as compared to the technical features that are recorded in the written descriptions and the attached drawings and are indispensable for achieving the aforesaid functions or effects, the corresponding technical features of an alleged infringing technical solution adopt substantially the same means to achieve substantially the same functions and effects, and can be contemplated without creative work by ordinary technical personnel in the relevant field at the time of the occurrence of the alleged infringement, the competent people's court shall determine that such corresponding technical features are identical or equivalent to the functional features.

Article 9 Where an alleged infringing technical solution cannot be applied to the use environment defined by the use environment features contained in the claim of rights, the competent people's court shall determine that the alleged infringing technical solution does not fall under the scope of patent protection.

Article 10 Where the preparation methods for an alleged infringing product are neither identical nor equivalent to the technical features in the claim of rights that use preparation methods to define the relevant product, the competent people's court shall determine that the relevant alleged infringing technical solution does not fall under the scope of patent protection.

Article 11 Where the sequence of technical steps is not specified in the claim of rights for a patented method but ordinary technical personnel in the relevant field are directly and clearly of the opinion that such technical steps shall be exploited according to specific sequence after reading the written claims of rights, the written descriptions and the attached drawings, the competent people's court shall decide that such sequence of steps has the role of defining the protection scope of the patent right.

Article 12 Where phrases such as "at least" or "not more than" are adopted in a claim of rights to define numerical features, and ordinary technical personnel in the relevant field are of the opinion that the patented technical solution concerned places special emphasis on the role of such phrase to define technical features after reading the claim of rights, written descriptions and attached drawings, the competent people's court shall not uphold the claim by the right holder that technical features different from such numerical features are equivalent features.

Article 13 Where the right holder proves that the narrowed revision or statement made by the patent applicant or the patentee in respect of the claims of rights, written descriptions and attached drawings in the patent licensing affirmation procedure is negated, the competent people's court shall determine that such revision or statement has not led to the waiver of the technical solution.

Article 14 When determining ordinary consumers' level of knowledge and cognitive ability as regards a design, a people's court shall consider the design space of the type of the products to which the relevant patented design is identical or similar at the time of the occurrence of the alleged infringement. Where the design space is relatively large, the people's court may determine that ordinary consumers are usually unlikely to notice the minor differences between different designs; where the design space is relatively small, the people's court may determine that ordinary consumers are usually more likely to notice the minor differences between different designs.

Article 15 Where an alleged infringing design is identical or similar to one of the patented designs of a complete set of products, the competent people's court shall determine that the alleged infringing design falls under the scope of patent protection.

Article 16 As regards the design patent of a component product with a unique assembly pattern, if an alleged infringing design is identical or similar to the overall design of the component product after assembly, the competent people's court shall determine that the alleged infringing design falls under the scope of patent protection.

As regards the design patent of a component product whose various components have no assembly pattern at all or do not have a unique assembly pattern, if an alleged infringing design is identical or similar to the designs of all the individual components of the component product, the competent people's court shall determine that the alleged infringing design falls under the scope of patent protection; and, if the alleged infringing design lacks the design of a certain individual component or is neither identical nor similar to the design of a certain individual component, the competent people's court shall determine that the alleged infringing design does not fall under the scope of patent protection.

Article 17 As regards the design patent of a product in active variations, if an alleged infringing design is identical or similar to the designs of all the various use states illustrated in the diagram of variations, the competent people's court shall determine that the alleged infringing design falls under the scope of patent protection; if the alleged infringing design lacks the design of a certain use state or is neither identical nor similar to the design of a certain use state, the competent people's court shall determine that the alleged infringing design does not fall under the scope of patent protection.

Article 18 Where a right holder files a lawsuit to request an entity or individual to pay appropriate fees for exploiting the relevant invention during the period from the date of announcement of the invention patent application to the date of announcement of the grant of the invention patent in accordance with Article 13 of the Patent Law, the competent people's court may make determination on reasonable basis by referring to relevant patent royalties.

Where the scope of protection requested by the applicant upon the announcement of the invention patent application is inconsistent with the scope of patent protection upon the announcement of the grant of the invention patent, and an alleged infringing technical solution falls under both of the foregoing two protection scopes, the competent people's court shall determine that the defendant has exploited the relevant invention during the period stated in the preceding paragraph; and, where the alleged infringing technical solution falls under only one of the two protection scopes, the competent people's court shall determine that the defendant has not exploited the invention during the period stated in the preceding paragraph.

Where a party, without the licensing from the patentee and for the purposes of production and business operation, uses, offers for sale of, or sells the products that have been manufactured, sold or imported by another party during the period stated in Paragraph 1 of this Article after the date of announcement of the grant of the invention patent and such another party has paid or promised in writing to pay appropriate fees prescribed in Article 13 of the Patent Law, the competent people's court shall not uphold the claim by the right holder that the aforesaid use, offer for sale and sale has infringed the patent right.

Article 19 Where a product sales contract is established in accordance with the law, the competent people's court shall determine that the sales as prescribed by Article 11 of the Patent Law have been constituted.

Article 20 As regards the re-processing or re-treatment of a follow-up product obtained from the further processing or treatment of a product directly obtained according to patented methods, a people's court shall determine that such re-processing or re-treatment does not belong to the circumstances of the "use of a product directly obtained according to patented methods" as prescribed under Article 11 of the Patent Law.

Article 21 Where a party has clear knowledge that certain products are the materials, equipment, parts and components, intermediate items, etc. specifically for the exploitation of a patent, and yet still provides, without the licensing from the relevant patentee and for the purpose of production and business operation, such products to another party committing the patent infringement, the competent people's court shall uphold the claim by the right holder that the party's provision of such products is an act of assistance for infringement as prescribed by Article 9 of the Tort Liability Law.

Where a party has clear knowledge that certain products or methods have been granted patent, and yet still actively induces, without the licensing from the relevant patentee and for the purpose of production and business operation, another party committing the patent infringement, the competent people's court shall uphold the claim by the right holder that the inducing act of the party is an act of abetting another party to commit infringement as prescribed by Article 9 of the Tort Liability Law.

Article 22 Where an alleged infringer raises the defense based on one existing technology or existing design, the competent people's court shall define the existing technology or existing design pursuant to the Patent Law prevailing on the date of patent application.

Article 23 Where the alleged infringing technical solution or design falls within the protection scope of the prior patent right involved in the case, the competent people's court shall not uphold the defense made by the alleged infringer that its technical solution or design has been granted patent and thus does not infringe the patent right involved in the case.

Article 24 Where the recommended national, industrial or local standards clearly indicate the necessary patent-related information, the competent people's court shall in general not uphold the defense made by the alleged infringer that the exploitation of such standards do not need the licensing from the patentee and thus does not infringe such patent right.

Where the recommended national, industrial or local standards clearly indicate the necessary patent-related information and the patentee intentionally acts against the obligation for licensing on fair, reasonable and non-discriminatory terms as committed in formulating the standards in consultation with the alleged infringer on the conditions for the exploitation and licensing of such patent, resulting in the failure to conclude the patent licensing contract, the competent people's court shall, in general, not uphold the claim by the right holder for cessation of the exploitation of the standards, provided that the alleged infringer has no obvious fault in the consultation.

The conditions for the exploitation and licensing of a patent as mentioned in Paragraph 2 of this Article shall be determined upon consultation by the relevant patentee and the alleged infringer. Where no consensus is reached upon sufficient consultation, the parties concerned may request the competent people's court to determine such conditions, in which case the people's court shall, on fair, reasonable and non-discriminatory terms, take into comprehensive consideration the degree of innovation of the patent, the role of the patent in relevant standards, the technical field to which the standards belong, the nature and scope of application of the standards, relevant licensing conditions and other factors to determine such exploitation and licensing conditions.

The provisions on the exploitation of patents involved in standards as otherwise prescribed by laws and administrative regulations shall prevail.

Article 25 Where a party uses, offers for sale of, or sells, patent-infringing products for the purpose of production and business operation without the knowledge that such products are manufactured and sold without the licensing from the relevant patentee, and is able to prove the legitimate sources of such products, the competent people's court shall uphold the request of the right holder that the aforesaid use, offer for sale, or sale be stopped, unless the user of the alleged infringing products furnishes evidence to prove that it has paid reasonable consideration for such products.

For the purpose of Paragraph 1 of this Article, "without the knowledge" shall mean the circumstance where a party has no actual knowledge and ought not to have knowledge.

For the purpose of Paragraph 1 of this Article, "legitimate sources" shall mean the use of legitimate business methods such as lawful sales channels and usual sale and purchase contracts to obtain products. The party who engages in use, offer for sale or sale shall provide relevant evidence consistent with business norms to prove legitimate sources.

Article 26 Where the defendant is found to commit the patent infringement, the competent people's court shall uphold the request of the right holder that the defendant be ordered to stop the infringement; however, the people's court may, instead of ordering the defendant to stop the act against which the lawsuit is filed, order the defendant to pay reasonable fees as appropriate based on the consideration of the interests of the State and the public interest.

Article 27 Where it is difficult to determine the actual loss suffered by a right holder, the competent people's court shall require the right holder to furnish evidence to prove the gains obtained by the infringer from the infringement in accordance with Paragraph 1 of Article 65 of the Patent Law. Where a right holder has provided the prima facie evidence proving the gains obtained by the infringer but the account books and materials related to the acts of patent infringement are mainly controlled by the infringer, the competent people's court may order the infringer to submit such account books and materials; where the infringer refuses to provide such account books and materials without justification or provides false account books and materials, the competent people's court may determine the gains obtained by the infringer from the infringement based on the claims of the right holder and the evidence furnished thereby.

Article 28 Where a right holder and the relevant infringer have legally agreed on the amount of compensation for patent infringement or the methods for calculating the amount of compensation and claim during the patent infringement lawsuit that the amount of compensation shall be determined in accordance with such agreement, the people's court shall uphold such claim.

Article 29 Where the party concerned legally applies for retrial based on the decision on declaring the patent invalid to request for the revocation of the judgment or mediation statement on patent infringement that is rendered by the people's court before the patent is declared invalid but is not enforced, the people's court may render a ruling to suspend the examination in retrial and suspend the enforcement of the original judgment or mediation statement.

If the patentee provides the sufficient and effective guarantee to the people's court to request that the enforcement of the judgment or mediation statement mentioned in the preceding paragraph be continued, the people's court shall approve such request; if the infringer provides sufficient and effective counter-guarantee to the people's court to request that the enforcement be suspended, the people's court shall approve such request. Where the decision declaring the patent invalid is not revoked by the binding ruling/judgment of the people's court, the patentee shall make compensation for the loss suffered by the other party concerned due to the continuation of the enforcement of such decision; where the decision declaring the patent invalid is revoked by the binding ruling/judgment of the people's court, the people's court may directly enforce the property under the above counter-guarantee based on the judgment or mediation statement mentioned in the preceding paragraph provided that the patent is still valid.

Article 30 If a lawsuit is not filed against a decision declaring the patent invalid with the competent people's court within the statutory time limit or the decision is not revoked by the binding ruling/judgment made after the filing of the lawsuit, the competent people's court shall conduct retrial if the party concerned legally applies for retrial based on such decision requesting that the judgment or mediation statement on patent infringement that has been rendered before the declaration of the invalidity of patent and is not yet enforced be revoked. If the party concerned, based on such decision, legally applies for termination of the enforcement of the judgment or mediation statement on patent infringement that has been rendered before the declaration of the invalidity of patent and is not yet enforced, the people's court shall rule to terminate the enforcement.

Article 31 These Interpretations shall come into effect on April 1, 2016. Where there is any discrepancy between relevant judicial interpretations promulgated previously by the Supreme People's Court and these Interpretations, these Interpretations shall prevail.