CHINA'S TOP 20 PATENT CASES IN 2017
INVENTORSHIP DISPUTE IN SERVICE INVENTION
First Instance Docket: (2015) NingZhiMinChuZi No. 130
Second Instance Docket: (2016) SuMinZhong No. 988 CIVIL CASE
CASE 1 :
Jiangsu Province
[Headnotes] In determining whether an invention is a service invention, finding of facts must be based on current existing law pertaining to civil rule of evidence, i.e., to make a comprehensive determination in accordance with legal procedural rules in overall and objective consideration of the evidence and of the relevancy of the evidence with the case. In specific cases, professional ethics of judges must be followed, and logical reasoning, together with daily life experience, must be adopted to reach a conclusion on the credibility and weight of the evidence, the rationale and result of which should be publicized.
[Synopsis] Appellant (Defendant below): Nanjing Mailande Medical Technology Co., Ltd. (Mailande, or Medlander) Appellants (Third Parties below): Mr. Shi, Mr. Yang, Mr. Zhou, and Mr. X. Yang Appellee (Plaintiff below): Nanjing Vishee Medical Technologies Holdings, Ltd. (Vishee) Vishee is an enterprise specialized in research, manufacture and sale of medical appliances. Shi, Yang, and Zhou are all former employees of Vishee, being responsible for the departments of R&D, Products, and Quality respectively. Beginning in 2010, Vishee applied for more than ten patents, for which Shi, Yang and Zhou were included in the named inventors.
On January 16, 2013, Medlander was set up as a company, doing roughly the same business as Vishee, with X. Yang being a shareholder. After Medlander was formed, Shi, Yang, and Zhou subsequently left Vishee and joined Medlander for work up to now.
On November 5, 2012, X. Yang filed an application for an invention patent “Vagina Electrode” under application number 201210435831.2 (the patent at issue). On September 13, 2013, a change of applicant was recorded for Medlander; and on April 16, 2014, the patent was approved and published, with the certificate showing inventor as X. Yang, and patentee as Medlander. Vishee contended that, because X. Yang had never been involved in the business of medical appliances or relevant research, the actual inventors of the patent at issue ought to be Shi, Yang, and Zhou, who, while being employed at Vishee, were appointed to work on the research and development of the patented invention at issue by using Vishee’s financial resources, place, equipment, materials, and nondisclosed technical data for a long time. For this reason, the patent at issue corresponding to the work result of the above three for the subject of their jobs at Vishee, and should therefore be service invention for which the patent ought to be awarded to Vishee. Medlander countered that the patented invention at issue was completed by X. Yang, from whom Medlander obtained the patent by assignment; that Shi,Yang, and Zhou were not actual inventors of the patent at issue; that the patent had nothing to do with the work of Shi, Yang and Zhou at Vishee; and therefore the patent should belong to Medlander.
The Nanjing Intermediate Court found: (1) that X. Yang is not the inventor of the patented invention at issue since he lacks the work experience, professional knowledge and research ability for the patent at issue; (2) that the patent at issue is the result of the work of Shi, Yang and Zhou during their employment at Vishee and therefore is a service invention; (3) that the quitting and job-hopping of Shi, Yang and Zhou were premeditated, and the three, in order to evade the law, filed the patent application in the name of X. Yang, transferring then to Medlander, a corporation, to make selfish gains under the disguise of corporate veil. In sum, the Nanjing Intermediate Court at first instance trial decided that the patented invention at issue was a service invention, to be owned by Vishee.
Medlander, Shi, Yang, Zhou, and X. Yang were not satisfied with the first instance judgment, and appealed to the High People’s Court of Jiangsu, which dismissed the appeal and affirmed the original judgment. Medlander was still dissatisfied, and petitioned the Supreme People’s Court for reconsideration, which was rejected.
[Judge’s Comment] In this case, the Jiangsu High Court at second instance found: I. In Chinese patent application process, no substantive examination is made as to inventorship indicated in the application document; therefore, what is shown in the letters patent is merely a de jure inventor, which does not serve as a de facto inventor. As far as X. Yang’s statement is concerned regarding the inventive process, the patent application, and the assignment, neither supported by evidence or by facts, part of which was even selfcontradictory – showing his lack of knowledge in the patent invention field – it failed to prove his assertion as the inventor of the patent at issue.
II. Since the patent at issue relates to the service invention by Yang, Shi, and Zhou, it should belong to Vishee. First, Yang, Shi, and Zhou should be recognized as the actual inventors. On the other hand, as pointed out by the first instance trial court, judged by the work experience of Shi, Yang, and Zhou at Vishee, the three have absolute professional knowledge and research capability of the patent technology, in possession of the core technology underlying the patent, and have the motive and intention to appropriate Vishee’s technological fruit for selfish gains. It is further shown from the patent application document that Shi, Yang, and Zhou are closely connected with the completion of the invention. In sum, it is unconvincing that Shi, Yang and Zhou are not the actual inventors.
Upon consideration, the Supreme People’s Court sustained the judgment of the second instance court.
This case is a dispute over patent ownership due to service invention, of which the unique aspect is: the inventor indicated in the patent document is not a former employee, but a third party unrelated to a former employer, and this third party inventor, after filing the application, immediately assigned it to another third party corporation, namely, the defendant in this case. Because the third parties, the corporation and the nominal inventor had no legal relationship with plaintiff, it was difficult to determine the inventorship on basis of relevant statute, but to be made by combining the provisions of the Patent Law on ascertaining identity of inventors, and on service inventions. This case is significant in that it provides important reference as guidance for similar future cases. This case also produces positive social effect for the breadth and effect of its judgment which signals judicial enhancement of entrepreneurial innovation, as well as judicial guidance for good-faith innovative startup and fair competition.
PATENT INFRINGEMENT OF THE INVENTION PATENT FOR “REMOTE SOFTWARE SERVICE SYSTEM”
First Instance Docket: (2014) YiZhongMin(Zhi)ChuZi No. 6912
Second Instance Docket: (2017) JingMinZhong No. 206
CASE 2 :
City of Beijing
[Headnotes] Sales figures demonstrated on defendant’s website, although being notarized, but is still capable of manipulation or deletion, it may only be used as a factor for consideration for calculating damages if it is not consistent with common sense according to common sense and other evidence. If the evidence is sufficient to show that defendant has obviously made a profit of more that the statutory damages of one million Yuan, a high amount of damages than the statutory one may be fixed in order to provide effective protection of patent rights, and achieve fairness and justice.
[Synopsis] Appellant (Plaintiff below): Beijing HelpNow Internet Technology Co., Ltd. (HelpNow) Appellee (Defendant below): Tsinghua Tongfang Holdings, Ltd. (Tongfang), Tianjin LingShiKong InfoTech Co., Ltd. (qhelp.com.cn, or Qhelp)
HelpNow accused Tongfang and Qhelp of patent infringement of its “Remote Software Service System” by making and selling the Qhelp remote service software and the services they provide, seeking damages in the amount of 6 million Yuan. Qhelp’s online sale record shows: Share Suite at 99 Yuan x 31,233 suites; Carefree Suite at 149 Yuan * 54,326 suites. The first instance court found at trial infringement against Tongfang and Qhelp, but considered the online sales figures were not genuine accounting information, and issued an injunction and 500 thousand Yuan in damages against them. Qhelp appealed.
In the second instance, Tongfang and Qhelp claim that the online sales figures are “static data” for which they notarized the Qhelp servers to show that the sales figure of the software is zero. At the request of HelpNow, the second instance court issued subpoena to Suning Commerce Group Co., Ltd. for evidence which shows that the offline sales figures to be around 3.1 million Yuan.
Court of second instance found that the notarized data being derived from Qhelp’s Internet server could not rule out the possibility of manipulation or deletion; moreover, it was inconsistent with common sense that the online sales figure was zero; for this reason, Qhelp’s online sales record could be taken into consideration for assessing damages. Besides the online sales, additional offline sales were also made through Gome and Suning, and those through Suning alone were more than 3.1 million Yuan. Therefore, the evidence at hand sufficiently showed that Tongfang and Qhelp had made an infringement profit well above the upper limit of statutory damages of 1 million Yuan. For effective protection of patent rights, and for fairness and justice, the amount of damages may properly be excised above the statutory damages. Since the accused products were remote service softwares, and Tongfang and Qhelp would have to hire engineers to provide human services, it would be inappropriate to include the entire sales income as unjust enrichment. For comprehensive consideration of the value of the patent, the degree of contribution of the patent at issue to the infringing products, and other infringing factors of Tongfang and Qhelp, the second instance court modified the award of damages to 3 million Yuan against Tongfang and Qhelp.
[Judge’s Comment] In patent infringement cases, it may not be easy for the patentee to obtain direct information on defendant’s infringement gains. Assessing damages in patent infringement cases has always been a hot point and a difficult one in judicial practice. The sales amount listed in defendant’s website, unless contrary to evidence or conspicuously inconsistent with common sense, could be taken as a factor in consideration of damages. Where defendant denies it by excuses of “static data,” “fair puffery,” or “actual sales as zero,” it should not be considered unless backed by evidence.
To clarify the facts, and for substantive justice, the court may admit evidence proffered by patentee from third parties. When the evidence sufficiently shows that defendant has made gains well above statutory amount of damages, the court may, according to circumstances of the case, assess damages over and above the statutory damages. The second instance court’s finding and ultimately its modification reflect a policy trend for enhancing judicial protection of intellectual property rights, by carefully analyzing defendant’s promotional material and comprehensively interpreting the patent statute on assessing damages, which is helpful for similar future cases.
PATENT INFRINGEMENT DISPUTES ON “PUBLIC BICYCLE RENTAL SYSTEM”
First Instance Docket: (2016) Hu73MinChu No. 33 Civil Judgment
Second Instance Docket: (2016) HuMinZhong No. 512 Civil Judgment
CASE 3:
City of Shanghai
[Headnotes] In patent infringement litigation, where disputes arise over different interpretation of punctuation marks in a claim, the Judicial Interpretation of Patent Law (II) Article 4 should be strictly followed in ascertaining the scope of patent protection. A patentee’s contention for a different interpretation of the same punctuation mark appearing in different places in a claim, unless supported by corresponding evidence in the claim or in the written description, shall not be sustained.
[Synopsis] Appellant (Plaintiff below): Jiangsu Hompe Technology Co., Ltd. (Hempe) Appellee (Defendant below): Changzhou Youon Technology Co., Ltd. (Youon)
Hompe is an exclusive licensee of an invention patent entitled “Management System of Parking/ Obtaining/Renting/Returning of Nonmotorized vehicles and Method for Control and Identification Thereof” (the “Patent”). Hompe alleged that all the elements in the public bicycle rental system manufactured and operated in Songjiang District of Shanghai by Youon fell in the protective range of claim 1 of the Patent, constituting patent infringement, for which it sued in Shanghai Intellectual Property Court, seeking injunction of manufacture and sale of the alleged infringing products, as well as economic damages and reasonable expenses.
Claim 1 of the Patent states: A management system of parking/ obtaining/renting/returning for non-motorized vehicle, comprising wherein (1) a storage means for
coding information of said vehicle; (2) a communications supervision and control unit; (3) receiving data of vehicle and its whereabouts from, and transmitting commands to, said communications supervision and control unit, to manage unit for controlling parking/obtaining/ renting/returning terminals on the vehicle; and (4) storage means of membership portable data for parking/ obtaining/renting/returning vehicle. The relevant mode of application and the accompanying drawings of the Patent specification both relate to two functions of “parking/obtaining” and “renting/returning.” Upon comparison, the parties disputed over whether the “parking/ obtaining” and “renting/returning” in claim 1 are parallel or alternative choices, and whether there was identical or equivalent elements to other limitations of claim 1. The court of first instance found that “parking/obtaining” and “renting/returning” in the preamble and limitations (3) and (4) of claim 1 of the Patent are parallel to each other, rather than alternative, and the accused device has only the management of “renting/ returning” functions for members to rent vehicles. Moreover, the other elements of the accused device are not identical with or equivalent to the Patent limitations. Therefore, the accused device does not fall in the protective range of the Patent. The Shanghai Intellectual Property Court at first instance trial decides: all complaints of Hompe are dismissed. After the announcement of the judgment, Hompe was dissatisfied and appealed, which was rejected by Shanghai High People’s Court, affirming the decision below.
[Judge’s Comment] This case focuses on the interpretation of a symbol, to wit, understanding of the meaning of forward slash “/” as used in “parking/ obtaining” and “renting/returning.”
In the realm of patent practice, Article 59 of the Patent Law prescribes the basic rule for ascertaining the scope of patent protection, i.e., in accordance with the contents of the claim, to be interpreted by the patent specification and the drawings. Therefore, the scope of protection of an invention patent is defined by its claim, and the written language of the description, which necessarily involves the accurate use of punctuation marks which, as an important component part of the claim language and the specifications, also play the role of defining the scope of patent protection. To the extent of common knowledge of language, punctuation marks may not always be unequivocal, and in ordinary daily use may produce ambiguities, neither is it precluded in the area of patent claim drafting. In this case, for example, the disputed forward slash mark “/” according to Chinese Usage of Punctuation Marks (GB/T 15834-2011) is defined as separation mark, indicating two possible logical relationships of parallel or alternative choices before and after the mark, which forms the key issue in determining the scope of patent protection in this case. On this issue, the Supreme People’s Court handed down on March 22, 2016 the Supreme People’s Court Interpretation on the Several Issues Regarding Application of Law in Adjudicating Patent Infringement Cases (II) (Judicial Interpretation of Patent Law (II)). Under Article 4, it is clearly provided, where there is ambiguity as to grammar, words, punctuation mark, symbol or signs in patent claims, the specification, or the drawings, which nonetheless could be reduced to an exclusive interpretation by a person having ordinary skill in the art (PHOSITA) through reference to the claims, patent specification or the drawings, the people’s court should admit such exclusive interpretation as its finding
of fact. This provision clarifies the principle to be followed in solving such problems, which the courts precisely must do in practice, and must make their finding of facts according to the specific claims and specifications in each case. As to how to understand “the exclusive interpretation,” this case made its findings from the perspectives of textual interpretation, logical interpretation, and systematic interpretation, etc. Besides, this case also reflects the problem of the ambiguities in claims drafting. The law protects only the limitations stated in the claims. All the limitations included in the claim language by the patentee at the time of publication of the patent are defining on the subject matter of the patent, constituting the indispensable part of the entire patent. This principle must be followed not only by courts in adjudicating patent infringement cases and in ascertaining the scope of patent protection, but also by patent applicants, patent owners, patent professionals, and others when drafting patent documents. To avoid equivocalities, a patent claim drafter is required to proceed cautiously when drafting patent documents, keeping in mind clear understanding of the prior arts while balancing the document he is drafting with the understanding, or he will have to be content to lie in the bed he made when asserting the patent right. The Chinese patent legislative intent, in fact, has consistently reiterated the requirements of public notice, ascertainability and predictability in patent drafting. Back to the present case, the patentee contended that the reason that the two functional limitations of “parking/obtaining” and “renting/ returning” were included in a single claim was because the patent also involves a process, and such way of drafting would facilitate different
ways of controlling in each set of functions. If that is exactly what the claim drafter had in mind, he should have put it down in words in the claim or the written description so that a PHOSITA, reading the document, could have
precisely, clearly, and unequivocally understand what was intended to be the patentable subject matter, rather than insisting on what was not reflected in the patent specification resulting from ambiguities as basis for patent infringement. On this
basis, because of the public notice function of the patent document, and the doctrine of good-faith qui pro quo in patent practice, the patentee should bear the consequences of any adverse result due to his own mistakes of ambiguous drafting.
PATENT INFRINGEMENT DISPUTE OVER FUNCTIONAL LIMITATIONS ◆ First Instance Docket: (2014) SuZhongZhiMinChuZi No. 00311 ◆ Second Instance Docket: (2016) SuMinZhong No. 291 CASE 4 :
Jiangsu Province
[Headnotes] Plaintiff bears the burden of proof to show that a certain limitation in a claim is not “functional.” All limitations expressed in function or result are not “functional limitations” as described in Supreme People’s Court Judicial Interpretations: if a person having ordinary skill in the art (PHOSITA) may, upon reading the claim, directly and unambiguously derive a specific mode of application achieving the function or result (including by employing any specific mode depicted in a textbook or a reference material), such a limitation should not be considered as a functional limitation. A functional limitation expressed in functions or results should be limited to those modes of application known to a PHOSITA, rather than to be considered as covering all possible modes that can achieve the similar functions or results, unsettling the patent protection scope and the balance of technical contribution.
[Synopsis] Appellant (Plaintiff below): SMC Corp. Appellee (Defendant below): Suzhou Shannaisi Pneumatic Co., Ltd. (Shannaisi); SNS Pneumatic Co.,
Ltd. (SNS) SMC is the patentee of patent No. ZL02130310.X for “Electromagnetic Valve” (the Patent), and of No. ZL02130309.6 for invention patent of “Cylindrical Antennae for Electromagnetic Valve.” It noticed in 2013 that Shannaisi sold several types of electromagnetic valves made and sold by SNS infringed its patents, and therefore filed suit with Suzhou Intermediate People’s Court seeking against Shannaisi and SNS injunction of manufacture and sale of the infringing product, and damages and reasonable fees against SNS in the amount of 1 million Yuan. The Suzhou Intermediate Court at first instance found: the accused product, compared with claim 1, lacked the fixing iron core, but all the other elements matched the claimed limitations. Claim 1 of the Patent had a limitation of “said solenoid driving said valve core in the near or distant direction from said valve base,” which is expressed in the function to be achieved, and therefore a functional limitation; the accused product does not have the fixed iron core as does the Patent, but instead has the end wall of a magnetic cover as the fixed iron core, which is not a substitute that a PHOSITA may realize without
inventive efforts, and therefore a different technical method falling outside the protective range of the Patent. For this, the Suzhou Intermediate Court after first instance trial decided: SMC’s complaint is dismissed. Dissatisfied with the first instance decision, SMC filed appealed with Jiangsu Province High People’s Court, which vacated the decision below and ruled for injunction against SNS and Shannaisi, and awarded damages and reasonable fees against SNS for the amount of 150 thousand Yuan.
[Judge’s Comment] Functional limitations have always been the hot and hard point in patent theoretical research and judicial practice. In this case, the court opined: First and foremost, all limitations defined by function or result are not necessarily functional limitations. If a person having ordinary skill in the art, upon reading the claim alone, may directly and clearly ascertain a specific mode of application to achieve the function or result, the claim limitation should not be considered as a functional limitation. Secondly, the limitation of “said
solenoid driving said valve core in the near or distant direction from said valve base,” in the Patent described the correlative relationship among the valve core, the base and the solenoid, defining the core, under the control of the solenoid, to be close to or distant from the base, to achieve opening or closing of the electromagnetic valve. According to the information revealed in the new evidence introduced by SMC at second instance, the Encyclopedia of Electric Power of China, 2d Ed., regarding electromagnetic valve technology, it can be seen that the “electric coil” corresponds to the solenoid in the Patent, the “middle component” to the cord, and the “electric coil capable of magnetizing or demagnetizing at the command of operator or automatic device; the middle component being powered by magnetic core, in either way
of direct power or guided power” to “said solenoid driving said valve core in the near or distant direction from said valve base.” Since the Encyclopedia, 2d Ed. was a published book, and antedated the application date of the Patent, this information is supposed to be known the PHOSITA for purposes of claim interpretation in this case. Therefore, a person of skill in this art, upon reading the claim, would be clear about how “said solenoid driving said valve core in the near or distant direction from said valve base” was achieved, without further reference to the patent specification for assistance to derive specific modes of application. Thirdly, in the accused device, the valve core is also driven by the solenoid to be close to or distant from the valve base, which is the same as the limitation of “said solenoid driving said valve core in
the near or distant direction from said valve base.” Since all the other elements of the accused device match the claim limitations, under the “all element rule,” the accused device is entirely covered by the Patent. As previously stated, the limitation of “said solenoid driving said valve core in the near or distant direction from said valve base” is not confined to the modes disclosed in the specification, SNS’s argument that the accused device because of the absence of fixing iron core does not fall in the claim may not be sustained. The second instance court gave detailed and specific instructions under the Judicial Interpretation regarding functional limitation standard, which survives the judicial test, and broadens the thinking and method for handling patent infringement cases, achieving satisfactory legal and social effect.
PATENT INFRINGEMENT DISPUTE OF “CANDY TOY AND PRODUCTIVE METHOD THEREOF” ◆ First Instance Docket: (2015) YueZhiFaZhuanMinChuZi No. 984 ◆ Second Instance Docket: (2017) YueMinZhong No. 2294 CASE 5 :
Guangdong Province
[Headnotes] In determining whether an accused subject matter constitutes literal infringement or infringement by equivalency of the patent claim,
it must be taken into consideration of the actual technical problem the patent intends to solve, i.e. central idea of the invention, the ascertainment of which should not exceed the heart and soul of the invention to avoid conferring the patentee protection beyond its contribution. As to the technical features of “non-inventive point” in the claims, it should be
broadly interpreted to ascertain its meaning, by referring to the central ideas in the specification for the true intentions, so as to avoid inadequate protection of the invention due to inappropriate narrowing of the interpretation.
[Synopsis] Appellant (Plaintiff below): Trolli Guangzhou Confectionery Co., Ltd. of Mederer Group GmbH (Mederer) Appellees (Defendants below): JinWang Food Co., Ltd. of Dongguan City (JinWang); TrustMark Department Store Co., Ltd. of
Guangzhou City (Trust-Mark) Mederer is the patentee of an invention patent No. Z L97198936.2 for “Candy Toy and Productive Method Thereof.” Alleging that the accused products manufactured by JinWang and sold by Trust-Mark have infringed its patent, Mederer filed suit in Guangzhou Intellectual Property Court, seeking injunction against JinWang and Trust-Mark, as well as compensatory damages in the amount of 1 million Yuan, plus 100 thousand Yuan for cost. JinWang in defense contends that the patent covers flake types
of only two component parts of foam sugar and pectin, whereas the accused product contains in every layer of the candy, apart from pectin, white sugar, glucose syrup, gelatin, etc., which falls outside the protective range of the patent, and therefore requests to dismiss the complaints. The court of first instance found: claim 1 of Mederer patent, according to the patent specification, “it (the candy toy) consists of a plurality of substantially parallel substrates molded with foam sugar and pectin,” is expressed in closed drafting language, which is generally interpreted that it covers only the expressed components, and no more of other parts, or processes, or steps. The element in the accused product is neither identical with or equivalent to the “pectin” limitation. The court therefore dismissed Mederer’s complaints. Dissatisfied with the first instance decision, Mederer appealed. The court of second instance found: the accused product employs the technical feature of claim 1 of the patent regarding “pectin”; either the molding method in the patent, or the melting method of the accused product, are the heated treatment of pectin and gelatin, which are similar methods. Therefore, the accused product falls within the protective range of claim 1 of the patent. The court of second instance decides: the first instance decision is vacated; JinWang is liable for damages and costs in the amount of 300 thousand yuan; all other Mederer complaints are dismissed.
[Judge’s Comment] I. Rule for interpreting inventive and non-inventive points of a patent claim. In this case, the key issue of dispute between the parties is
whether the accused product contains the identical element of “pectin” or an equivalent thereto as in claim 1 of the patent. To answer this question, it is necessary first of all to ascertain the meaning of the claim limitations, for which it shall be borne in mind of the technical problem sought to be solved by the patent, or the central idea of the invention, which shall not exceed the heart and soul so as to avoid conferring more to the patentee than his contribution. Correspondingly, in ascertaining the technical features of “noninventive point” of the claim, a more lenient method should be adopted in interpreting its meaning, by referring to the entire body of the specification to understand the true meaning of what the patentee intended to express, so as to avoid unnecessary narrowing which may cause failure of protection of the invention. It can be determined according to the specification, that claim 1 targets at reducing complexity of making candy toy without reducing its ability to be played with, which is the inventive point, and also the purpose of the accused product through structural design. Relatively speaking, the foam sugar and pectin are not the inventive point of the patent claim. II. The meaning of the claim may be ascertained by combining reference books, other public information such as textbooks, and common sense possessed by a person of ordinary skill in the art. In interpreting the meaning of “pectin” as used in the patent claim, neither the claim itself, nor the specification, nor the drawing, gives clear definition of “pectin.” But another patent from the patent family did. According to the first issue of the 2009 Food Industry, an article, The Properties of Gelata and Jelly Sweets (3), stated that in making jujubes with pectin materials, it is necessary to add
certain amount of sugar and acid. Based on this, a person of ordinary skill in the art, by referring to the patent specification and the drawings may ascertain that the “pectin” required in the claim means the jelly sweets having a flavor of fruits to which may be added such additives or substances as glucose syrup, white sugar, and buffer salt for controlling pH values. Although the accused product has various ingredients, it does not alter the physical properties and structure of fruits flavored jelly sweets, which coincide with the technical feature of pectin and foam sugar required for the substrate member in the patent claim. Thus, the accused product has the “pectin” element as in claim 1, where the composition of “pectin” is not clear, even the closed structure of claim language does not rule out the effect of gelatin. As to whether the substrates of the accused product are connected by way of molding or an equivalent method, according to an article in issue No. 3 of the 2009 Food Industry, The Properties of Gelata and Jelly Sweets (5), when making jelly sweets using gelatin, heat processing is needed. Thus either patented molding method or the melting method of the accused product involves heat processing of pectin and gelatin materials, therefore, an equivalent method. T h i s c a s e c l a r i f i e d t h e interpretational rule to be applied for inventive and noninventive points of a patent claim for determination of whether an accused technical solution constituted an identical or equivalent features for the patent claim, thereby ensuring corresponding protection for the patentee’s technical contribution, and effective encouragement and protection for innovation.
