I.Trial of Patent Cases

1.Whether Inferior Modified Technical Solutions Fall within the Scope of Patent Protection

There are such circumstances in practice that cases are received in which certain technical features of patented technical solutions are omitted or replaced by the alleged infringer，making the technical effect inferior to the intended effect of the technical solution.In past judicial practice，there are two different views about whether or not such inferior technical solutions should fall within the scope of patent protection.According to the first view，if such an inferior technical solution is obviously caused by the deliberate omission or replacement of a certain technical feature，the principle of equivalence should be applied and it should be deemed to be infringement.The other view holds that the determination of patent infringement should observe the principle of full coverage；thus，if such inferior technical solution is caused by the lack of a certain technical feature of the patented technical solution in question，being neither identical nor equivalent to the corresponding technical feature，it cannot be deemed to be infringement.

In the utility model infringement case of Zhang Jianhua and Shenyang Gaolian High-rise Heating Network Technology Co.，Ltd.（Gaolian Company）v.Shenyang Zhilian High-rise Building Heating Technology Co.，Ltd.（Zhilian Company）［（2008）MTZ No.83］，the SPC expressed the belief that a people's court should，when judging whether an allegedly infringing technical solution falls within the scope of patent protection，compare its technical features with all of the technical features recorded in the patent claims.If its technical effects are inferior due to the lack of a certain patented technical feature，it should be determined that the allegedly infringing technical solution does not fall within the scope of patent protection.

The basic facts of the case are as follows：Zhilian Company enjoyed the exclusive right to the use of two utility model patents，namely‘air-discharge and cutoff device of directly-connected heating system without tanks for high-rise buildings’and‘rotation stopper of directly-connected heating system without tanks for high-rise buildings’.Zhang Jianhua once worked at Zhilian Company and engaged in the installation and maintenance of cut-off devices and rotation stoppers；he set up Gaolian Company immediately after his departure from Zhilian Company.In August 2002，Zhilian Company filed a lawsuit to Shenyang Intermediate People's Court of Liaoning Province against Zhang Jianhua and Gaolian Company on the grounds that the buffers and air separators made and sold by the latter infringed upon its two patents.By comparison，it was found that the technical features of the patented cutoff device differed from those of the buffer in the following ways：the allegedly infringing product had no guide plate with surrounding threads，and its breather was a vent check valve which could only exhale rather than inhale.The difference in technical features between the patented rotation stopper and the allegedly infringing air separator was that the latter had no baffler or rotation stopping plate but was equipped with an air-collecting hood.In the first instance，Shenyang Intermediate People's Court held that the patented cut-off device was equipped with a guide plate with surrounding threads which was capable of reinforcing the water flow into a membrane flow，thus separating air from water.The allegedly infringing buffer was unable to form such a membrane flow due to the lack of a guide plate，resulting in inferior decompression and retardation effects.For this reason，they considered it to be an inferior technical solution in comparison with the technical solution of the patented cut-off device.Thepatentedcut-offdevicecouldmaintainnormal atmospheric pressure inside the system through the regular inhaling and exhaling of its breather，and seal the system by means of a water seal，thus reducing the oxygen corrosion of the system.The allegedly infringing buffer was equipped with a vent check valve which could only exhale.If the system were running unevenly，especially if the pressure in the buffer was lower than the atmospheric pressure，then outside air could not be inhaled and a vacuum space would be formed in the buffer.Thus，no membrane flow could be formed and the system would be unable to run.Compared with the breather of the patented cut-off device，the vent check valve was an inferior technical feature.The allegedly infringing air separator was not equipped with a rotation stopping plate，so it could only stop rotation through the friction of the water flow with the wall of the water return pipe，an effect which could not be as effective as that of the rotation stopping plate.Therefore，the air separator was also an inferior technical feature when compared with the patented rotation stopper.As this patented technology had been known to the public，and Zhang Jianhua had even worked at Zhilian Company，it was very easy for him to omit the necessary technical features in the patent.It was just such an omission of the necessary technical features that made the performance and effect of the allegedly infringing technical solution inferior.Therefore，the allegedly infringing technical solution fell within the scope of patent protection，and the actions of Zhang Jianhua and Gaolian Company constituted patent infringement.Gaolian Company and Zhang Jianhua were ordered to assume the liabilities for infringement，but Zhang Jianhua disagreed with the judgment of the first instance and lodged an appeal.In the second instance，the High People's Court of Liaoning Province upheld the determination of the court of first instance that the allegedly infringing product was an inferior technical solution that constituted equivalent infringement，rejected the appeal and sustained the original judgment.Nonetheless，Zhang Jianhua refused to accept the second instance judgment and filed a petition to the SPC for retrial.On July 24,2009，the SPC ruled to review the case，and made a retrial judgment on October 30,2009，which reversed the civil judgments of both the first and second instances and dismissed the claims made by Zhilian Company.

In the retrial，the SPC considered that a people's court should，when judging whether the allegedly infringing technical solution falls within the scope of patent protection，compare its technical features with all the technical features recorded in the patent claims.Where the technical features of the allegedly infringing technical solution lack one or more of the technical features recorded in the patent claims or contain one or more technical features which are neither identical nor equivalent to any technical features recorded in the patent claims，the people's court shall determine that the allegedly infringing technical solution does not fall within the scope of patent protection.Whether the technical effect of an allegedly infringing technical solution is inferior due to the lack of a certain patented technical feature is not a due factor to be considered when judging alleged patent infringement.In this case，the allegedly infringing technical solution did not fall within the scope of patent protection due to its lack of more than one technical feature，and the actions of neither Zhang Jianhua nor Gaolian Company constituted patent infringement.

2.Application of the Principle of Estoppel

The principle of estoppel means that any patent applicant or patentee may not claim to incorporate any technical solution surrendered through an amendment to the claim or specification or through a statement in the patent granting or invalidation procedure in the scope of patent protection in a patent infringement case.No express provision is made in any current law or judicial interpretation on whether the people's court can actively apply，at its sole discretion，the principle of estoppel in case of the failure by the alleged infringer to claim for the application of this principle.

In the utility model patent infringement case of Shen Qiheng v.Shanghai Shengmao Transport Infrastructure Engineering Co.，Ltd.（Shengmao Company）［（2009）MSZ No.239］，the SPC pointed out that the people's court may apply the principle of estoppel to impose necessary restrictions on the scope of equivalence based on the facts ascertained even if the alleged infringer fails to claim for its application.

The basic facts of the case are as follows：Shen Qiheng applied to the State Intellectual Property Office（SIPO）for a utility model patent titled‘Berth Lock for Cars’on December 18,2000，and was granted a patent on November 21,2001.Claim 1 of the patent involved in the case is that a berth lock for cars consists of a base（1），pins（2），movable piles（3）and a lock（4），wherein，said base（1）is fixed on the ground，the movable piles（3）are connected to the base（1）by the pins（2），and the movable pile has a hole into which to insert the lock（4）.On March 19,2003，Chuanyang Co.，Ltd.，an outsider，filed a request to the Patent Reexamination Board（PRB）of SIPO to invalidate the involved patent.The PRB made Decision No.6101，declaring Claim 1 invalid and upholding the patent's validity only to the extent of Claims 2，3，and 4.Shen Qiheng disagreed with the decision and filed an administrative litigation，the complaint of which read：‘the movable pile has a hole into which to insert the lock，which means that the lock is not fixed in the hole but arranged in two states of connection based on the state of use，i.e.，it is in the hole of the movable pile when locked，and is pulled out and separated from the hole when unlocked.’On April 15,2005，the’Beijing High People's Court delivered an administrative judgment［（2005）GXZZ No.37（hereinafter referred to as‘Administrative Judgment No.37’］，revoking Decision No.6101.However，On March 15,2006，the PRB made Decision No.8127，upholding the validity of the involved patent.Decision No.8127 ascertained that，‘when the berth lock is locked up，the hole in the movable pile in Claim 1 is available to insert the whole body of the lock into to lock up the ground pile，and when it is unlocked，the lock may be taken out and no additional fixing device is needed to fix the lock.Therefore，the patent has substantive features and proves progress...is creative compared with the prior art’.On September 26,2006，Shen Qiheng sued to Shanghai No.1 Intermediate People's Court，alleging that the vehicle parking lock manufactured and sold by Shengmao Company fell into the scope of patent protection，and requested the court to order Shengmao Company to cease its infringement and compensate for the losses thus incurred.The Shanghai No.1 Intermediate People's Court found that the lock of the allegedly infringing product was fixed on the base，and was therefore different from the description of Claim 1 in which‘the movable pile has a hole into which to insert the lock’.According to the principle of estoppel，Shen Qiheng was not entitled to claim infringement on the ground of equivalence，and his claim was dismissed.Shanghai High People's Court upheld the first instance judgment.On January 9,2009，Shen Qiheng filed a petition to the SPC for retrial.On August 18,2009，the SPC rejected Shen Qiheng's petition.

According to SPC，the principle of estoppel is a restriction on the determination of equivalent infringement.In order to maintain the balance of interests between patentees and the social public，the application of such a principle by the people's court at its sole discretion should not be limited.Therefore，the people's court might apply the principle of estoppel in determining whether the alleged product constituted infringement，so as to impose necessary restrictions on the scope of equivalence based on the facts ascertained，even if the accused infringer fails to claim for the principle's application.

3.Interpretation of the Sequence of Steps in the Claims of Process Patents

A process patent is a technical solution used for solving a technical problem，and it includes a series of processes or operating steps.It is disputed whether the sequence of steps is restrictive to the scope of the patent protection of the process patent if no sequence of steps is clearly defined in the process patent's claims.

In the invention patent infringement dispute case of OBE-Werk Ohnmacht&Baumgartner GmbH&Co.KG（OBE Company）v.Kanghua Glasses Co.，Ltd.，（Kanghua Company）［（2008）MSZ No.980］，the SPC held that when applying the principle of equivalence in determining whether an invention constitutes an infringement，any patent specification and its attached drawings，files for review，overall technical solutions in the claim and so on，as well as the logical relationship between all the steps，can be taken as a reference in determining whether such steps should be applied in a specific sequence.The SPC also held that both the steps and the sequence of their application should be restrictive to the scope of patent protection.

The basic facts of the case are as follows：OBE Company applied to the SIPC for an invention patent titled‘Spring Hinge Manufacturing Method’on April 24,1996，and was granted the patent on October 24,2001.Claim 1 of the involved patent is：‘1.A method for manufacturing spring hinges，each of which consists of at least one housing，one hinged element and one spring，featuring the following steps：a metal band for forming a hinged element is provided；an area substantially similar to the hinged element is cut out；a round area is formed by punching to form the shoulder of the hinged element；and the hinge holes of the hinged element are formed by punching.’On June 24,2002，OBE Company filed a lawsuit alleging that Kanghua Company had manufactured，used，offered for sale and sold spring hinge products falling within the scope of patent protection for production and business purposes without its permission，constituting a patent infringement.It requested the court to order Kanghua Company to cease its infringement，pay compensation for damages and assume other civil liabilities.Beijing No.1 Intermediate People's Court found that Kanghua Company had manufactured their spring hinge in the following ways：1.Feeding a metal band manually into a punching machine to punch off a hinged element；2.Clamping the anterior part of the hinged element by hand with pliers and rounding off the rear part of the hinged element with a forging press；3.Clamping the anterior part of the hinged element by hand with pliers and perforating thehingedelementbyinsertingitintoaperforatingmachine；4.Threading a lead wire through the round hole in the anterior part of the hinged element，then polishing the hinged element with a polishing wheel.The Court held that both Claim 1 of the patent and the manufacturing method of Kanghua Company included four steps.Although the sequence of die forging and perforating was adjustable after punching the hinged element out of the metal band，the adjustment of the sequence did not have any new effect.The manufacturing method of Kanghua Company was equivalent to the protected method as described in Claim 1，falling within the scope of protection of the involved patent.In the trial of second instance，Beijing High People's Court considered that，according to the specification of the involved patent，its patented technical solution was achieved by following a specific sequence of steps，any change in which could not achieve the technical effects and the technical purpose of the patent.The manufacturing method of Kanghua Company consisted of four steps，wherein the sequence of rounding off and perforating was adjustable，and this differed from the fixed sequence of steps in the patented technical solution.Therefore，the manufacturing method of the allegedly infringing product was neither identical nor equivalent to，and did not fall within the scope of protection of the involved patent.On such grounds，the Beijing High People's Court reversed the first instance judgment and dismissed the claims of OBE Company，who refused to accept the second instance judgment and filed to the SPC for retrial.The SPC rejected its appeal for retrial on August 29,2009.

Upon the retrial of the case，the SPC found that the limitation of the sequence of steps on any claim should not be ignored in the litigation of a process patent infringement due to lack of clear definition of the sequence of steps in such claim；rather，references should be made to any patent specification and their attached drawings，files for review，overall technical solution in the claim and so on，as well as the logical relationship between all steps，so as to determine from the view of an ordinary technician in the relevant field whether such steps should be applied in a specific sequence.For a process invention requiring a specific sequence of steps，both the steps and the sequence of their application should be restrictive to the scope of patent protection.In this case，Claim 1 consisted of four steps.First，the feeding step was to provide materials for the other processing steps.Therefore，this step must be applied before any and all of the other steps.Second，the cutting step was to cut out an area from the metal band substantially similar in shape to the hinged element.As described in the patent specification involved and presented in its attached drawings，the space comprised‘the basic shape to form the shoulder 9’and‘at least a part of the region 497 which will be arranged a hinge hole’.As the punching step was to punch‘the basic shape to form the shoulder 9’made in the cutting step，the punching step was to punch a hinge hole in‘region 497’made in the cutting step.The specification neither contained any description of the application of the punching or perforating step prior to the cutting step，nor gave any relevant technical instructions，so it was difficult for an ordinary technician in this field to anticipate the same purpose or technical effect of the involved patent in case of the application of the punching or perforating step prior to the cutting step.Therefore，the cutting step in Claim 1 should be applied prior to the punching and perforating steps.From the description in the specification，the sequence of the punching and perforating steps was interchangeable，but they must be applied in sequence once specified in the actual process.Therefore，the four steps in Claim 1 must be applied in a specific sequence.

4.Method of Comparative Analysis of Principles and Techniques in Hearing Patent Infringement Cases

Patent infringement cases involve the examination，judgment of professional technical facts and comparative analysis of techniques，and are characterized by a certain regularity and particularity in terms of the principles and techniques of hearing，as well as the specific wording of judgment documents.Although basic modes of review，analysis and reasoning are followed in the current judicial practice of patent infringement cases，there are still considerable differences in the analysis of some specific issues and the specific wording of judgment documents.

In the utility model patent infringement case of Xue Shengguo v.Zhao Xiangmin and Zhao Zhangren［（2009）MSZ No.1562］，the SPC made an in-depth analysisofhowtojudgethe‘threesubstantiallyidenticalfactors’and‘obviousness’when applying the principle of equivalence.It also pointed out that if the patentee's explanation of a technical feature in the infringement proceedings was within the scope stated by the patent claim and was consistent with its patent specification and the attached drawings，such a technical feature might be limited based on its explanation.

The basic facts of the case are as follows：on August 8,2007，Xue Shengguo filed a patent infringement lawsuit against the defendants Zhao Xiangmin and Zhao Zhangren，making the following patent claims：A dough mixer for processing vermicelli，consisting of a rack（1）and a driving motor（2）arranged on the rack（1）.It is characterized by the feature that a hopper（5）with a feed port（3）and a discharge port（4）are arranged at the upper part of the rack（1），and a conveyor auger（6）is arranged in the hopper（5）and driven by a driving motor（2）.Two U-shaped dough kneading buckets（7，8）connected with each other are arranged side by side over the discharge port（4）on the rack（1），wherein the bottom of the U-shaped dough kneading bucket（7）is lined to the discharge port（4）.Two dough kneading hammers（9，10）are arranged on the rack（1）over each of the U-shaped dough kneading buckets（7，8）respectively，and a support frame（11）to support the dough kneading hammers（9，10）is connected to the power shaft of the driving motor（2）via a crank rod mechanism（12）.Zhengzhou Intermediate People's Court of Henan Province held in the first instance that the technical features of the allegedly infringing product were not identical with the necessary technical features of patent protection claimed by Xue Shengguo and did not fall within their scope，and thus dismissed his claims.Upon Xue Shengguo's appeal，Henan High People's Court determined in the second instance that it was improper to deem certain techniques identical or equivalent，but it was proper to rule that the allegedly infringing product did not fall within the scope of patent protection claimed by Xue Shengguo and did not constitute infringement.On these grounds，the court rejected Xue Shengguo's appeal and upheld the original judgment.Nevertheless，Xue Shengguo disagreed with the second instance judgment and filed to the SPC for retrial.After review and hearing，the SPC also came to the conclusion that the actions of the respondent in this case did not constitute patent infringement，but that the specific reasons for such a conclusion differed from those of the court of first instance.On November 26,2009，the SPC rejected Xue Shengguo's appeal for retrial.

After decomposing and determining six corresponding technical features of the patented technical solution and the allegedly infringing product，the SPC found that，as to the No.5 technical feature，the hopper of the allegedly infringing product was merely moved higher and closer to the dough kneading bucket compared with the patented product so as to take advantage of the weight of the dough.However，the dough could not flow easily，so it would be difficult to deliver it into the dough kneading bucket by gravity alone without it being squeezed by the conveyor auger.Conversely，the technical solution of the conveyor auger would not be necessary if the dough could flow into the dough kneading bucket by gravity alone.Therefore，the allegedly infringing product would still substantially squeeze the dough with its conveyor auger into the dough kneading bucket through the discharge port.Thus，both the allegedly infringing product and the patent took advantage of the squeezing feature of the conveyor auger to deliver the dough into the dough kneading bucket.It can be seen that，compared with the technical features of the patent，the allegedly infringing product used roughly the same means to achieve an almost identical feature and effect.Furthermore，it is a common notion that an object drops due to its own weight and gravity.Therefore，common technicians in the concerned technical field should，without any creative work，be able to think of moving the hopper higher and away from the dough kneading bucket.According to the judicial interpretation of the applicable patent laws，this technical feature of the allegedly infringing product constituted an equivalent technical feature.As to the No.6 technical feature of the patent，the patentee clearly confirmed that the support frame shared by the two dough kneading hammers was connected to the power shaft of the driving motor through the crank-connecting rod mechanism，and the power drive can drive the two dough kneading hammers up and down in the same direction.The patentee's explanation of the technical features of his patent was not beyond the scope of the technical description in the claims，and was commensurate with the relative positions and mutual connection of the two dough kneading hammers，the support frame，the crankconnecting rod mechanism and the driving motor as shown in the drawings attached to the patent specification.The necessary technical features of Xue Shengguo's patent involved therein might be defined as follows：two dough kneading hammers are arranged on the rack over each of the U-shaped dough kneading buckets respectively，the two dough kneading hammers are connected to the power shaft of the driving motor through the crank-connecting rod mechanism，and the power drive can thus drive the two dough kneading hammers up and down in the same direction.By comparing No.6 with the corresponding technical features，the two dough kneading hammers of the patent share a support frame，and the crank-connecting rod mechanism and power drive work together to drive the dough kneading hammers up and down in opposite directions.In comparison，each of the dough kneading hammers of the allegedly infringing product is arranged with a support frame，both of which are connected by a lever，and one of the support frames is driven by the crank-connecting rod mechanism and the power drive to drive the two dough kneading hammers up and down in opposite directions.Although both the allegedly infringing product and the patent had the support frame to support their dough kneading hammers，and the power drive of each could drive the dough kneading hammers up and down in the same direction through their crank-connecting rod mechanisms，they obviously used different techniques as seen from the working principles and modes of motion of their dough kneading hammers，and it should not have been considered that substantially identical means were adopted.Moreover，while the power drive of the patent drove the support frames of both dough kneading hammers，the power drive of the allegedly infringing product drove the support frame of only one of the dough kneading hammers in order to save energy and use a lighterduty motor.In addition，the allegedly infringing product took advantage of the lever principle to drive the two dough kneading hammers up and down in opposite directions，thus avoiding the idle work of the unused support frame of the patent when driving the dough kneading hammers.Thus，the technical effect of the allegedly infringing product was significantly different from that of the patent.Moreover，it can be considered creative for a common technician in the relevant technical field to thinkoftheallegedlyinfringingproduct'sswitchingmode.Therefore，the corresponding technical feature of the two was neither identical nor equivalent.Compared with Xue Shengguo's patent，the allegedly infringing product had at least one corresponding technical feature which was neither identical nor equivalent，so the allegedly infringing product did not fall within the protection scope of Xue Shengguo's patent.

5.Understanding a‘Patent Declared Invalid’under Article 47.1 of the Patent Law of the People's Republic of China

It is stated in Article 47.1 of the Patent Law of the People's Republic of China（the Patent Law）that any patent which has been declared invalid shall be deemed to have never existed.Any decision of the PRB to declare a patent invalid is an impartial award against the person requesting the invalidation and the patentee of such a patent involved in any dispute in respect of the validity of such a patent.Although a decision of invalidation has the presumptive legality of an administrative act，its effectiveness has not been finalized，as it may become the subject of administrative proceedings.In the trial of a patent infringement case，different practices are followed by the court as to whether to suspend the trial or directly dismiss the plaintiff's claim on the basis of the PRB's decision to invalidate.

In the alleged utility model patent infringement case of Shenzhen Wanhong Technology Development Co.，Ltd.（Wanhong Company）v.Shenzhen Pingzhi Oriental Technology Development Co.，Ltd.，New Noah Technology（Shenzhen）Co.，Ltd.and Noah Innovation Electronic（Shenzhen）Co.，Ltd.［（2009）MSZ No.1573］，the SPC held that a‘patent declared invalid’under Article 47.1 of the Patent Law referred to a patent declared invalid in the final binding decision made by the PRB upon reviewing the corresponding request for invalidation.It would be unjust to directly dismiss any of the patentee's claims prior to the determination of the final binding force of such a decision.

The basic facts of the case are as follows：On October 25,2008，Wanhong Company filed a lawsuit against Shenzhen Pingzhi Oriental Technology Development Co.，Ltd.，New Noah Technology（Shenzhen）Co.，Ltd.，and Noah Innovation Electronic（Shenzhen）Co.，Ltd.，on the grounds that they had infringed the utility model patent of Wanhong Company.Shenzhen Intermediate People's Court delivered the first instance judgment on February 25,2009，in which the three defendants were held accountable for the infringement.The three defendants refused to accept the judgment and filed an appeal.In the second instance，the High People's Court of Guangdong Province found that Decision No.13590 made by the PRB on June 24,2009 declared all the patents of the utility model involved in the case invalid.Wanhong filed a petition to the court of the second instance to suspend the trial on the grounds that the patentee had filed administrative proceedings against the above decision.The High People's Court of Guangdong Province overturned the first instance judgment and dismissed all of the claims raised by Wanhong Company.Wanhong Company refused to accept the second instance judgment and filed to the SPC for a retrial.Upon review，the SPC found that Beijing No.1 Intermediate People's Court had decided on July 2,2009 to admit the administrative proceedings filed by the patentee against Decision No.13590，but the administrative proceedings had not yet been concluded.On December 8,2009，the SPC made a ruling instructing the High People's Court of Guangdong Province to retry the case.

Upon review，the SPC held that the binding force of the PRB's decision to declare a patent invalid shall be finalized if neither of the parties file to a people's court within three months of the receipt of such a decision，and the binding force of the decision shall be finalized in the case of being confirmed by effective administrative adjudication if either of the parties file administrative proceedings legally.Although all the rights of the involved patent were declared invalid by the PRB's Decision No.13590，the patentee had already filed for administrative proceedings against the Decision within the statutory period；thus，Beijing No.1 Intermediate People's Court admitted the case as the binding force of Decision No.13590 was obviously not finalized.Under such circumstances，Wanhong Company applied to the court of the second instance to suspend the trial，but the court of the second instance directly ruled to dismiss all of Wanhong Company's claims on the grounds that the involved patent had already been declared invalid by Decision No.13590，which was an incorrect application of the law.

6.Retroactivity of a Decision Declaring a Patent Invalid

Article 47.2 of the Patent Law（the Second Amendment in 2000）stipulates that，the decision to declare a patent invalid shall have no retroactive effect on any judgment or ruling of patent infringement which has been made and enforced by the people's court，on any decision concerning the settlement of a dispute over patent infringement which has been implemented with or compulsorily enforced，or on any contract on patent license or assignment of patents which has been performed，prior to the decision to declare the patent invalid.However，the patentee shall compensate for any and all losses and damages it has maliciously caused to any other person.To ensure the smooth progress of the trial，it is likely that the people's court may make multiple rulings regarding the procedural matters in civil proceedings，but not all of these rulings are unaffected by such a decision to declare a patent invalid.

In the different infringement dispute case of Anji Xueqiang Bamboo Products Co.，Ltd.（Xueqiang Company）v.Xu Zanyou［（2008）MSZ No.762］，the SPC defined the scope of‘ruling’under Article 47.2 of the Patent Law（the Second Amendment in 2000）.

The basic facts of the case are as follows：Xu Zanyou applied to the SIPO for the registration of a design patent titled‘Carpet（bamboo）’on June 13,2001，and was granted the patent on March 6,2002.In March 2004，Hangzhou Customs and Shanghai Customs detained the containers of products exported by Xueqiang Company as requested by Xu Zanyou on the grounds of the alleged infringement of the patents involved therein.On April 2,2004，Xu Zanyou filed a lawsuit with Hangzhou Intermediate People's Court alleging the infringement of the involved patents by Xueqiang Company，and Hangzhou Intermediate People's Court detained said cargo containers as requested by Xu Zanyou.Xu Zanyou also required Xueqiang Company to suspend the sales of the allegedly infringing products during trade fairs in Shanghai and Guangzhou.On May 1,2004，Xueqiang Company filed a petition to the PRB to declare the patents invalid.On August 18,2005，the PRB made Review Decision No.7432 on Request for Invalidation，declaring all the patents involved in the case invalid.On September 15,2005，Xueqiang Company filed an appeal to Hangzhou Intermediate People's Court alleging that the property detention measure illegally applied by Xu Zanyou had resulted in materially adverse economic losses and social impact，and requested Hangzhou Intermediate People's Court to order Xu Zanyou to compensate for the losses，eliminate the social impact，apologize and pay for any and all of the legal costs.In the first instance，Hangzhou Intermediate People's Court held that Xu Zanyou's act of applying for detention by customs and seizure by the court，and his request to order Xueqiang Company to suspend the sales of the allegedly infringing products，etc.，were all legitimate before the involved patents were declared invalid.However，the requests made by Xueqiang Company to order Xu Zanyou to compensate for all the losses and apologize in public for his above acts were not firmly grounded.As such，Hangzhou Intermediate People's Court dismissed the claims of Xueqiang Company.Upon their appeal，High People's Court of Zhejiang Province considered in the second instance that Xueqiang Company had failed to prove that Xu Zanyou's acts were in bad faith，and such acts had already terminated when the involved patents were declared invalid.Therefore，High People's Court of Zhejiang Province declared that the decision to declare the involved patents invalid was not retroactive in accordance with Article 47.2 of the Patent Law，and dismissed the appeal of Xueqiang Company.Nevertheless，Xueqiang Company refused to accept the second instance judgment and filed to the SPC for a retrial.On March 24,2009，the SPC made a ruling instructing High People's Court of Zhejiang Province to retry the case.

Upon investigation，the SPC held that the‘ruling’mentioned under Article 47.2 of the Patent Law（the Second Amendment in 2000）shall mean any ruling involving patent infringement；namely，a ruling made in respect of the case and applied by the court，upon its review and the effective adjudication of the existence of patent infringement，excluding any ruling involving the adjudication of the nonexistence of patent infringement.As the involved patent was declared invalid by the PRB，the trial court made a judgment that Xueqiang Company's actions did not constitute patent infringement.Therefore，the previous ruling regarding property detention made by the trial court was not a‘ruling’under Article 47.2 of the Patent Law，and the decision to declare the involved patents invalid was retroactive upon such a decision.Similarly，the decision to declare the patents involved in the case invalid was also retroactive upon Xu Zanyou's act of applying for detention by customs and requesting for Xueqiang Company to be ordered to suspend their sales of the allegedly infringing products.It is the legal right of any patentee to exercise the right of action and apply for applicable measures in accordance with the Patent Law.However，the patentee's exercising of their right shall not constitute prejudice towards the legitimate interests of any other.As the stability of any patent is relative，any person can file an application to declare an authorized patent invalid through the procedure for invalidating patents，and the patentee shall know of the possibility of its patent being declared invalid.Therefore，the patentee should be cautious and fully estimate the risk of litigation in the exercising of its patents，particularly before such acts as applying for property detention，ordering the cessation of certain acts，etc.，which might directly cause damage to the respondent.Xu Zanyou failed to perform his duty of care，and applied for property detention，ordering the cessation of certain acts，etc.，which directly caused damage to Xueqiang Company，before the final confirmation of Xueqiang Company's infringement of the patents involved therein，which was an incorrect application of the law and constituted infringement.