Previously we published an article about CNIPA rejecting a patent application claiming a food that could also be used to treat or prevent diseases based on the food’s alleged non-compliance with Food Safety Law. China’s Food Safety Law includes a provision which states any use of a composition as a food must be strictly separated from any medicinal use. Recently, we have noticed a worrying trend of such “food safety” type rejections impacting a broader class of inventions, even for inventions that are not directed towards the food itself. Here is one such case. Manufacturing Methods for Making a Plate The patent application[1] at issue is directed towards a method…
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China’s Supreme People’s Court (SPC) Hands Down First Patent Linkage Appeal Decision
China has been implementing a plethora of new laws and measures that are particularly favorable to drug companies, such as patent term extension and patent linkage. Details of the new implementation measures for patent linkage (technically “early dispute resolution mechanisms for drug patents”) came into effect on July 4, 2021. At around the same time, China’s public registration system for innovator companies to list patent associated with marketed drugs (China’s version of the US FDA’s “Orange Book”) began accepting registrations. It has been close to one year since these mechanisms were put in place. The first legal decisions from these patent challenges are now coming out, and the first appeal…
- Biotech, China, Court Cases, Courts, Patent Law, prosecution, Supreme People's Court, Top 50 Representative Cases
SPC Upholds $2M RMB Award in China’s First Patent Case on a Biological Deposit
On 28 Feb 2022, China’s Supreme People’s Court (SPC) issued its annual “Judgment Digests”, which includes a list of “48 typical cases” highlighting representative SPC decisions in 2021. The Judgment Digests help us understand more about the SPC’s judicial ideology, trial concepts, and adjudication methods in dealing with difficult and sophisticated legal issues as well as new types of IP cases in high tech fields. This case was one of the 48 “typical” cases and deals with how to determine infringement for claims covering biological deposits [1]. Case Background summary FengKe (上海丰科生物科技股份有限公司) is a Shanghai company owning a patent (201310030601.2) claiming a particular white mushroom fungal strain. The patent only…
