Article 1

Where the claims of a patent contains two or more claims, the right holder shall specify in the complaint the claims based on which the accused infringer is being sued for patent infringement. Where such claims are not specified or not clearly stated in the complaint, the people's court shall require the right holder to specify the claims; where the right holder refuses to do so upon requirement of the people’s court, the later may rule to dismiss the lawsuit.

Article 2

Where the claims of a patent on the basis of which the right holder asserted patent infringement in a lawsuit are declared invalid by the Patent Re-examination Board, the people's court trying the patent infringement dispute may render a ruling to dismiss the lawsuit filed by the right holder on the basis of the invalid claims.

The right holder may file a lawsuit separately if there is evidence showing that the decision to declare the claims invalid is revoked by a binding administrative judgment.

If the patentee files a lawsuit separately, the period for limitation of action shall be calculated from the date of service of the administrative judgment mentioned in Paragraph 2 of this Article.

Article 3

Where, as a result of obvious violation of paragraph 3 or paragraph 4 of Article 26 the Patent Law, the description cannot be used to explain the claims, which does not fall within the circumstances specified in Article 4 hereof and based on which a request is made for declaring the patent invalid, the people's court trying the patent infringement dispute shall in general rule to suspend the lawsuit; if the patent is not announced invalid within a reasonable period of time, the people's court may determine the protection scope according to the claims.

Article 4

In spite that the claims, description or its accompanied drawings are ambiguous to a person of ordinary skill in the art in terms of grammars, wordings, punctuations, graphics, symbols, etc., where said person of ordinary skill in the art can clearly arrive at only one unique understanding by reading the claims, description and drawings, the people's court shall make determination according to said unique understanding.

Article 5

When a people's court determines the protection scope of a patent, the technical features defined in the preamble and the characterizing portions of an independent claim, and the technical features defined in the reference and the characterizing portions of a dependent claim shall all be considered.

Article 6

The people's court may construe the claims of the patent concerned by referring to another patent that has a “divisional application” relation with the patent concerned, the file wrappers of said another patent and any binding judgments/rulings in relation to its allowability or validity.

Said file wrappers include the written materials submitted by applicants or patentees during the process of patent examination, re-examination and invalidation, as well as office actions, meeting minutes, oral hearing records, binding patent re-examination decisions, patent invalidation decisions etc. issued by the patent administrative department of the State Council or the PatentReexamination Board.

Article 7

As regards a close-ended claim for a composition, if an accused technical solution contains technical features in addition to all the technical features of the claim, the people's court shall determine that the accused technical solution does not fall within the protection scope of the patent, except that the additional technical features are unavoidable impurities in normal quantity.

Said close-ended claim for a composition referred to in the preceding paragraph shall generally not include the claim of a traditional Chinese medicine composition.

Article 8

A functional feature is a technical feature defining the structure, composition, step, condition or their relations by its function or effect in the relevant invention-creation, unless a person of ordinary skill in the art is able to directly and clearly determine the specific embodiment for achieving such function or effect by reading purely the claim.

Where, as compared to the technical feature in the description and its accompanied drawings essential for achieving aforesaid function or effect, the corresponding technical feature of the accused technical solution performs the same function by substantially the same way to achieve the same result, and can be contemplated without creative work by a person of ordinary skill in the art at the time of the accused infringement, the people’s court shall determine that such corresponding technical feature is identical with or equivalent to the functional feature.

Article 9

Where the accused technical solution can not be applied to the use environment defined by the use environment features of a claim, the people's court shall determine that the accused technical solution does not fall within the protection scope of the patent.

Article 10

Where the manufacturing process of the accused product is neither identical with nor equivalent to the manufacturing process recited in a claim that includes said manufacturing process to define certain technical features of the relevant product, the people's court shall determine that the accused technical solution does not fall within the protection scope of the patent.