On December 28 2009 the Supreme People's Court of China issued the Interpretation on Several Issues as to the Application of Laws Concerning Patent Infringement Cases. The Interpretation came into effect on January 1 2010.
Judicial Interpretations are of considerable importance, as they provide guidance on important patent infringement issues. The more important points of the latest interpretation are:
- Claim construction: the court should determine the patent scope based on the description of the claims as well as the understanding thereof when read by an ordinary person skilled in the art.
- All elements rule: the all elements rule is to be adopted. All technical features or their equivalents need to be present in the defendant's product before it may be deemed an infringement.
- Design patent infringement: in terms of similarity of designs, it shall be determined by reference to the overall visual effect of the patented design and the design features of the accused product in accordance with the standard of an ordinary consumer (as opposed to the relevant consumer), placing more emphasis on the parts more visually noticeable when in ordinary use, as well as those more readily distinguishable from existing designs.
- Prosecution history estoppel: technical solutions abandoned through amendment during application or invalidity proceedings will be excluded from the scope of protection.
- Declaration of non-infringement: the aggrieved party to a warning letter may institute legal proceedings at court for a declaration of non-infringement where the patentee fails, upon request, to withdraw his warning within a certain time period.
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