CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
If a right-holder gives a warning of patent infringe - ment to another person, and the person warned or an interested person reminds the right-holder in writing of exercising their right to sue and the right-holder neither withdraws the warning nor files a lawsuit within one month after receipt of the written reminder or within two months after the written reminder is sent, such person can then file a lawsuit to request a confirmation that their act does not infringe the patent. In China, there is no legal concept equivalent to “Arrow Declaration”. 1.10 Doctrine of Equivalents Equivalence infringement, or the doctrine of equivalents, was officially introduced into Chi - nese patent legislation in 2009, through the implementation of the Chinese Supreme Court’s judicial interpretation. Chinese courts have since developed a three-step method for determining equivalence infringement, which is conveniently referred to by the Chinese legal community as the “three (basically identical) plus one (obvious - ness)” approach. The “three plus one” approach includes: • step 1 – ascertaining the distinguishing fea - tures; • step 2 – comparing the distinguishing fea - tures and the patent, to assess whether they use basically identical means to achieve func - tions which are basically identical and which result in basically identical effects; and • step 3 – determining obviousness for replace - ment. 1.11 Clearing the Way There is no obligation to “clear the way” ahead of a new product launch. However, when sued for patent infringement, Freedom to Operate
(FTO) reports can be used to prove unintentional infringement to avoid punitive damages. 1.12 Experts In China, it is not uncommon for experts to be involved in civil lawsuits, particularly in patent infringement cases, such as those involving life science patents. These experts fall into two cat - egories: expert witnesses and expert assistants. Expert witnesses are typically responsible for endorsing the appraisal report, attending court sessions and providing testimony. Expert assistants actively contribute to the trial process, participating in entire court hearings, posing questions to the opposing party, and responding to queries from the judges. Moreover, if the case concerns complex tech - nical issues, the court may appoint technical investigators to participate in pre-hearing ses - sions or court hearings; the technical investiga - tor may ask questions of the parties, expert wit - nesses and expert assistants about the technical issues (in relation to the patent at issue), and may conduct investigations. Theoretically, expert evidence is permissible in patent infringement proceedings, though this is not common in China. 1.13 Use of Experiments Experiments are permissible for establishing or refuting infringement or validity in terms of life science patents. For instance, the court has the authority to carry out comparisons and experi - mentation directly within the court session for evidentiary purposes. 1.14 Discovery/Disclosure Discovery/disclosure is not available in China.
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