Patent of WO 97/42878 1997.11.20 and WO 99/12478 1999.3.18 (Patentee: AGA Medical Corporation) have been invalidated in China!
AGA medicine, Ltd. v. Beijing Starway Medical Supplies Ltd.
The petitioner, AGA Company filed this appeal against the respondent Beijing Starway Medical Supplies Ltd. in Beijing Higher People¡¯s Court, based on infringing right of patent. The No.1 Intermediate People¡¯s Court of Beijing made the judgment in favor of the respondent.
The No.1 Intermediate People¡¯s Court of Beijing concluded that, according to Article 59 of the Patent Law, the protection extent of the Act is confined as the content of the written request of patent. The issue in this case is whether the infringed product is under the definition of the written request of patent.
In substantive examination, the Intellectual Property Office referred to reasons that may result in forfeiture of novelty. AGA defined the protection extent on its own, emphasizing that its request of patent differs from the contrast document.
In accordance with the equivalence infringement theory, even though there is one or more technical characteristics of the products accused apparently differ from those technical characteristics that an independent patent right requests, the two can be identified as the same on analyses, therein products accused are under protection of the patent.
Therefore, if the patentee defines its technical characteristics in patent examination, and then seeks for damages according to the equivalence infringement theory while in judicial procedure, this is a violation of good will and will not be granted by the court.
¡°Offer to sell¡± under patent law is a series of behaviors such as issuance of advertisement, exhibition, demonstration, sending price lists, bulletin of auction, and public bidding invitation etc., with the purpose of concluding sales contracts of patent products. The ¡°Offer to sell¡±activity of Beijing Starway Medical Supplies Ltd., Ltd. constitutes patent infringement of AGA company, which should bear civil ability, including refrain from infringement and damages. Whereas the evidence is insufficient to prove products from Beijing Starway Medical Supplies Ltd. are in the protection extent of AGA, claims of AGA based on this point are dismissed by the court.
AGA petitioned this appeal to my court, claiming that: 1, In the course of patent examination, AGA just rebutted the examiner¡¯s misunderstanding, not modified patent requests. The court below concluded that AGA defined the protection extent on its own, which constituted a violation of estoppel, and Beijing Starway Medical Supplies Ltd. had no infringement behaviors. AGA alleged that the judgment of the court is unjust. 2, The court ruled Beijing Starway Medical Supplies Ltd.assumed inefficient damage, which was unfavorable to protect rights of patentees. AGA moved for motion to reverse the previous decision on the second and third points.
Notwithstanding AGA admitted that products accused differed from one patent requested, AGA alleged that it was an uncreative technical project, and activities of respondent should be defined as an infringement. While the respondent argued that according to estoppel, dissimilarity the petitioner admitted resulted in products¡¯ out of the protecting extent of AGA.
Beijing Higher People¡¯s Court rules that, in accordance with Article 11 (1) of the Patent Law, patents for Invention and Utility Model should not be manufactured, utilized, sold, and imported for commercial purpose without permission of patentee. In the recent case, AGA alleges that two activities of the respondent infringed patent of AGA, which are utilizing photos of patented products in publicizing, manufacturing and selling patented products. Therefore, the technical characteristic is out of the extent of AGA patent. That is to say the manufacturing and selling activities of the respondent do not constitute infringement to patent of AGA.
£¨Source: IPR in China£©
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