Pursuing Commonweal Should not be the Reason for Patent Infringement

  On the morning of September 27, the Kunming Intermediate People’s Court of Yunnan province held court of first instance and adjudged in court the first patent administrative litigation case in the history of Yunnan. The Kunming Intermediate Court dismissed the request of the plaintiff pledging the court to withdraw the Patent Infringement Dispute Handling Decision made by the Kunming Patent Office, for the reason that the suit brought by the plaintiff (the Kunming Blood Center) lacked legal and factual basis.

  On May 10, 2004, the plaintiff (the Kunming Blood Center) made and set up a billboard in the High-tech Development Zone in Kunming, Yunnan province, with the content of propagandizing Dedicating Blood is the Citizen’s Duty and showing clearly the plaintiff’s address. The billboard was identical to the oblique single standing pole billboard of which the patent right was taken by Fengchi Company and the access was taken by Honghe Cigarette Factory only. On May 27, 2005, Fengchi Company and Honghe Cigarette Factory put in the Patent Infringement Dispute Dealing Request to the Kunming Patent Office, considering that the action taken by the Kunming Blood Center to make and set up said billboard has constituted the fact of infringing the design right of Fengchi Company and Honghe Cigarette Factory, and requested the defendant (the Patent Office) to deal with it.

  After accepting the request on May 27, 2005, the Patent Office decided that the action of the Kunming Blood Center to make the billboard has constituted patent infringement of Fengchi Company and Honghe Cigarette Factory, and made a - decision: the fact of infringement by the Kunming Blood Center is acknowledged, and the Blood Center should stop the infringing action immediately and sue to the court for unreached compensation agreement.

  The Kunming Blood Center did not agree with the decision, and brought an administrative litigation to the Kunming Intermediate Court to pledge the court to withdraw the decision made by the Kunming Patent Office and-have the defendant (the Kunming Patent Office) pay for the suit.

  After court’s investigatio , the argument focuses on whether the plaintiff has the fact of infringement. The plaintiff’s view is there was no infringement in the use of billboard because of the purpose of using it was to propagandize the Blood-dedication Law which was for the common good. 

  The defendant (the Kunming Patent Office) and the third party (Fengchi Company and Honghe Cigarette Factory) held the view that the point of the argument was not the content of the advertisement but its carrier ----the billboard, and -doing the commonweal should also base on the law in order to show respect to intellectual property and the law, and they requested the court to reject the petition from the plaintiff.

  After the trial, the Kunming Intermediate Court  shows its opinion that patent right is an exclusive, monopoly right, and is protected by law for sure as soon as it has been granted , and no unit or individual is allowed to apply it unless being granted or permitted by the patentee; the billboard the plaintiff has set up was of the same kind with the patented one owned by the third party, and the design was enough to make a confusion although the contents were different; the billboard set up by the plaintiff is within the scope of protection of law for the billboard with its design right owned by Fengchi Company.

October 9, 2005 

Source: www.cnipr.com