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Judicial Practice of Use Condition Feature in China
Among the top 10 landmark IP cases and 50 illustrative IP cases of Year 2015 released by China's Supreme Court in April this year, a patent infringement case involving Huawei as the petitioner and ZTE and Alibaba as the respondents (2015 Min-Shen-Zi No. 2720) further clarifies the application of the use condition feature. Based on this, further in combination with Article 9 of the Patent Judicial Interpretations (II) which took effect on 1 April 2016 and a precedent case involving Shimano as the petitioner and SunRun as the respondent (2012 Min-Ti-Zi No. 1), the judicial practice of the use condition feature in China can be summarized as follows:
1. A use condition feature refers to a technical feature used for describing the background or condition for carrying out the invention.
2. A use condition feature recited in a claim is an essential feature, which limits the patent scope. As to the most reasonable, common and popular operating environment and mode for carrying out a patent method, even if not recited as a feature in a claim, it shall be considered in determining patent infringement of the method patent.
3. If an accused infringing solution can be applied only in the use condition recited by a product claim, it shall be found that the accused infringing solution reads on the use condition feature recited by the claim, without requiring the use condition feature to be actually applied in the accused infringing solution.
4. If an accused infringing solution cannot be applied in the use condition feature limited by a claim, or an accused infringing solution can be applied in both the use condition recited by a product claim and other use conditions, it shall be found that the accused infringing solution doesn't fall within the patent scope.