CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
indirectly infringes a patent shall be liable jointly and severally with the direct infringer. 3.3 Process Patents For a patented process, not only the act of using the patent process, but also using, promising the sale of, selling or importing the product directly obtained from the patented process constitutes infringement. Therefore, even if parts of the allegedly infringing process are practised out- side China, there might be a patent infringement if some of the above acts occur in China. 3.4 Scope of Protection for an Intellectual Property Right The scope of protection of an invention or utility model patent shall be determined by the content of the claims, and the specification and draw- ings may be used to interpret the claims. The scope of protection of a design patent shall be determined by the design of the product shown in the drawings or photographs, and the brief introduction may be used to interpret the design. For an invention or utility model patent, the protection scope of claims shall be determined based on all technical features recorded in the claims, including the technical features identical or equivalent to those in the claims. Equivalent features are those using essentially the same means to achieve essentially the same functions and effects as the technical features recorded in the claims, and can be associated by a person having ordinary skill in the art without the need for inventive labour when the accused infringe- ment occurs. To interpret the claims of the patent involved, its examination archives may also be taken into account, which include (i) the written materi- als submitted by the patentee in the process of prosecution, re-examination and invalida-
tion, and (ii) the notice of examination opinions, meeting records, oral hearing records, patent re-examination decision, and the patent invali- dation decision made by the CNIPA. 3.5 Defences Against Infringement China offers various non-infringement defence avenues for accused infringers, each with its applicable scenarios and conditions. For the FRAND principle, if a patent holder intentionally violates their commitment to fair, reasonable, and non-discriminatory licensing obligations during standard setting, resulting in the failure to reach a patent implementation licensing agreement, and the accused infringer demonstrates no apparent fault during negotia- tions, courts generally do not support the rights holder’s claim to cease standard implementation actions. For prior-use rights, if the accused has already manufactured the same product, used the same method, or made necessary preparations for manufacturing or using the product before the patent application date and continues to do so within the original scope, this defence applies. For laches, if the patent holder or related stake- holders become aware or should have been aware of the infringement act and the infringer, and no lawsuit is initiated within three years from this awareness or within 20 years from the infringement act, the defendant can raise a defence based on the expiration of the statute of limitations. For patent exhaustion, if a product derived directly from a patented product or method is sold by the patent holder or authorised entities or individuals, subsequent use, promised sale,
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