(passed on 21 December 2009 and effective on 1 January 2010)
Judicial Interpretation No. 21 [2009] of the Supreme People’s Court
Adopted at the 1480th meeting of the Judicial Committee of the Supreme People’s Court on December 21, 2009 Judicial Interpretation No. 21 [2009] of the Supreme People’s Court
To facilitate proper adjudication of patent infringement disputes, in accordance with the relevant provisions of the Patent Law of the People’s Republic of China, the Civil Procedure Law of the People’s Republic of China and other laws, and combining the actual practice of trials, this interpretation is promulgated.
1. The people's court shall based on the claims asserted by the right holder in accordance with Article 59(1) of the Patent Law, determine the scope of protection of the patent rights.  If the right holder changes the claim which he asserts before the end of the submissions of the first instance trial, the People’s Court shall permit this.
If the right holder requests a determination of the scope of protection of the patent rights based on a dependent claim, the People's Court shall determine the scope of protection of the patent rights based upon the additional technical limitations recited in the dependent claim as well as the technical limitations of the claim it relies upon.
2.  The people's court shall based on what is recited in the claims combined with the understanding of a person of ordinary skill in the art who reads the specification and figures confirm, based on the provisions of Article 59(1) of the Patent Law, the contents of the claim.
3. The people's court may use the specification, figures, relevant claims of the patent, and the patent examination file to interpret a claim.  If the specification contains a special definition regarding terminology in the claim, it shall be specially defined as such.  
If using the above methods it is still not possible to clearly determine the meaning of the claim, interpretation can conducted using a combination of literature available to the public such as reference books and textbooks, as well as the ordinary meaning understood by an ordinary skilled man.
4. Where the claim describes a technical limitation though functions or effects, the people's court shall determine the contents of the technical limitation according to the specific embodiments and the equivalent embodiments of the functions or effects described by the specification and figures.
5. Regarding a technical scheme which has only been described in the specification or figures and has not been recited in the claims, and the right holder in a patent infringement suit seeks to include it in the scope of protection of patent rights, the people’s court will not support it.
6. If a patent applicant or a patent right holder in the course of grant or invalidation, abandoned a technical scheme through amendments to the claims or specifications or in a statement of opinion, and the right holder in a patent infringement suit seeks to include it in the scope of protection of patent rights, the people’s court will not support it.
7. When a people's court adjudicates whether an alleged infringing technical scheme falls into the scope of protection of patent rights, it shall examine all the technical limitations recited in the claims asserted by the right-holder.
If the alleged infringing technical scheme includes all the technical limitations or equivalent technical limitations recited in a claim, the people's court shall determine that the accused infringing technical scheme falls into the scope of protection of the patent rights.  When comparing the technical limitations of an alleged infringing technical scheme and all the technical limitations recited in the claim, if one or more of the technical limitations recited in the claim are missing, or if one or more of the technical limitation are not identical or equivalent, the people's court shall determine that the accused infringing technical scheme does not fall into the scope of protection of the patent rights.   
8. Where a product of the same or similar type to the product of the design patent uses a design which is identical or similar to the granted design patent, the people's court shall determine the alleged infringing design patent falls into the scope of protection of design patents of Article 59(2), of the Patent Law
9. The people's court shall based on the purpose of the product of the design patent, determine whether the type of product is identical or similar.  To determine the purpose of the product, the People's Court may refer to the brief description of the design, the International Classification for Industrial Designs, the function of the product as well as factors such as the circumstances of sale and actual use of the products.
10. The people’s court shall, in deciding whether the design is identical or similar, use the intellectual level and cognitive ability of ordinary consumers of the product the subject of the design patent. 
11. The people’s court, in determining whether a design is identical or similar, shall according to the design features of the granted design and the accused infringing design patent, conduct a comprehensive determination based on the total visual effect of the design; however, design features that are determined mainly by technical functions as well as features that which do not affect the total visual effect such as materials and internal construction shall not be considered.
The following conditions usually have more influence on the total visual effect of a design:
(a) Parts of the product that in normal use are easily observed directly relative other parts;
(b) Design features of the granted design that differ from existing designs relative to other design features of the granted design.
If the alleged infringing design does not differ from the granted design in terms of total visual effect, the People's Court shall determine the two to be the same; if no substantial difference in total visual effect exists, the two shall be determined to be similar. 
12. If a product which infringes invention or utility model patent rights has been used as a component to manufacture another product, the people's court shall determine that it constitutes an act of use under Article 11 of the Patent Law.  If said other product is sold, the people's court shall determine that it constitutes and act of selling under Article 11 of the Patent Law.
If a product which infringes a design patent right has been used as a component to manufacture and sell anther product, the people's court shall determine that it constitutes an act of selling under Article 11 of the Patent Law, subject to the exception however where the infringing design patent product only has technical functions in said other product.
Regarding the situations provided in the two preceding paragraphs, if there exists division of labour and cooperation between alleged infringers, the people's court shall determine this to be joint infringement.   
13. With regard to an original product obtained through the use of a patented process, the people’s court shall determine this to constitute a product directly obtained through the patented process under Article 11 of the Patent Law.
With regard to the acts of further processing or treating the above original product to obtain a further product, the people's court shall determine this to constitute use under Article 11 of the Patent Law by which a product is directly obtained by the patented process.
14.  If all the technical characteristics alleged to fall within the scope of protection of a patent right are identical or without substantial differences to corresponding technical characteristics of a prior art technical scheme, the people's court shall determine that the technology implemented by the alleged infringer constitutes prior art under Article 62 of the Patent Law. 
If an alleged infringing design is identical to or without substantial differences to a prior design, the People's Court shall determine the design implemented by the alleged infringer constitutes a prior design under Article 62 of the Patent Law.
15. If an alleged infringer asserts a prior art defence based on a technology or design which has been illegally obtained, the People's Court shall not support it.
In any of the following situations, the people's court shall determine that it constitutes "already made the necessary preparations for manufacturing or using" under Article 69(2) of the Patent Law. 
(1) The main technical drawings or technical documents needed for implementing the invention-creation have already been completed. 
(2) The main equipment or raw materials required for implementing the invention-creation have been manufactured or purchased.
The original scope under Article 69(2) of the Patent Law includes the existing manufacturing scale as well as the manufacturing scale which can be reached using the existing manufacturing equipment or based on the existing preparations for manufacturing before the date of application for the patent. 
If the prior use rights holder after the patent application date, transfers or licenses the technology or design for existing implementation or for the preparation for implementation to a third party to be implemented, and if the alleged infringer asserts such act of implementation constitutes continued implementation within the original scope, the people's court shall not support it, except, however, where the technology or design and the original company have been simultaneously transferred or succeeded to.
16. When the people's court determines the profit obtained due to the infringement by the infringer under Article 65(1) of the Patent Law, it shall be limited to the profit obtained due to the acts of infringement by the infringer; all other profits produced by other rights shall be reasonably deducted. 
Where the product which infringes invention or utility model patent rights is the component of another product, the people's court shall in accordance with factors such as the value of such part itself as well as its role in producing the profit of the final product reasonably determine the amount of damages.
Where the product infringing a design patent is a packaging, the people's court shall in accordance with factors such as the value of packaging itself as well as its role in producing the profit of the packaged product reasonably determine the amount of damages 
17. If a product or the technical scheme of a product is known to the domestic or overseas public before the application date of a patent, the People's Court shall deem that the product does not fall within the "new product" under Article 61(1) of the Patent Law.
18. Where a right holder issues to a third party a patent infringement warning, if the party which has been warned or a related injured party has in writing demanded the right holder to exercise its right to sue, and if within one month from the right holder receiving said written demand notice or within two months from the sending of said demand notice, the right holder does not withdraw the warning and does not file a suit, if the party which has been warned or the related injured party files a suit to the people's court to request a determination that its acts do not infringe patent rights, the People's Court shall accept the case.
19. If an alleged act of patent infringement took place before 1 October 2009, the people's court shall apply the Patent Law before the amendment; if it takes place after 1 October 2009, the people's court shall apply the amended Patent Law.
Where the alleged acts of patent infringement occurred prior to 1 October 2009 and continue after 1 October 2009, and the infringer shall be liable to pay compensation in accordance with the provisions of the Patent Law pre-amendment and post-amendment, the People's Court shall apply the post-amendment Patent Law to determine the amount of compensation.
20. In case of any inconsistencies with relevant judicial interpretations previously issued by this court, this Interpretation shall control.