Case

case

2023-01-17

The determination of the method of production by the characteristic by-products contained in the product constitutes a tort

The gist of the case

The proof of method patent infringement is a difficult point in tort litigation, and when it is considered to be a method patent involving a non-new product, the patentee/plaintiff has the burden of proof, and how to prove is even more difficult. At this time, the patentee usually can not obtain the defendant's production method; if the court application for preservation of evidence of the defendant's production method, whether can obtain the defendant's real production method is quite variable. The burden of proof remains with the patentee/plaintiff. In this case, the plaintiff's products based on the use of the patent method in question all contain three characteristic by-products, while the same product in question by the defendant contains these three characteristic by-products of the patent method in question, it was thus established that the defendant had used the plaintiff's patented method and thus constituted a violation. Both the Beijing Second Intermediate People's Court and the Beijing Higher People's court adopted the evidence presented by the plaintiff, while the defendant failed to prove that the production methods claimed by it could also produce these three characteristic by-products, it was thus found that the defendant had violated the patent rights by using essentially the same methods as those used in the case.

Case Index

Trial Court (First Instance) : the Second Intermediate People's Court of Beijing, People's Republic of China

Case Number: (2007) No. 12860

Trial Court (second instance) : Beijing High People's Court of the People's Republic of China

Case number: (2008) Gao Min Last Word No. 164

The natural situation of the party concerned

The plaintiff, BASF Corporation

The defendant, Nantong Shih Chong Chemical Company Limited

The defendant, Beijing Sunshine Clover Biochemical Technology Co. , Ltd.

The litigant of first instance pleads and pleads

The plaintiff, BASF, claimed that the plaintiff held a patent granted by the Intellectual Property Office of the People's Republic of China for the invention, “Preparation of essentially dust-free tetrahydroxy-3,5-dimethyl-1,3,5-thiadiazine-2 sulfide particles,” with the patent number ZL 92115325.2. On November 15,2006, the plaintiff found that the defendant Nantong Shizhuang company had been operating without permission for the purpose of production and operation, production and sale of the product “Longxin integrated soil disinfectant”(98% Minlong microgranule) obtained directly from the plaintiff's patented method; the defendant Sunbeam Crawford sold the above-mentioned product without permission. The plaintiff held that the above-mentioned acts of the two defendants violated the patent rights involved in the case, and therefore sued for a court order: 1. The defendant Nantong Shizhuang Company stopped using the patent methods involved in the case, stopped selling and destroyed the infringing products involved in the case, compensation, the plaintiff's economic losses and reasonable costs of 500,000 yuan; 2, the defendant Sunshine Crawford Company to stop the sale of infringing products involved in the case; 3, the two defendants jointly bear the costs of the case.

The defendant Nantong Shizhuang Company argued that the products involved in the plaintiff's patent method were not new products, and that the defendant Nantong Shizhuang company should not bear the burden of proof in this regard. The plaintiff had no evidence to prove that the defendant Nantong Shizhuang Company used the method, method. The defendant, Nantong Shizhuang company, manufactured the product in accordance with its “Code of practice for the production of micron particles”. It did not add alkylenediamine, but used other additives such as Sodium dodecyl sulfonate and altered the reactor interior, structure to produce the products involved in the case, and the case patent method is different. The defendant Nantong Shizhuang company did not infringe the plaintiff's patent rights, did not cause damage to the plaintiff, the plaintiff's claim for compensation has no basis, therefore requested the court to reject the plaintiff's claim against it.

The defendant Sunshine Crawford argued that the products in question were legally obtained from the defendant Nantong Shizhuang Company and had legal sources. Moreover, the company does not know that the products in question are made and sold without the permission of the patentee, and the act of selling the products in question does not constitute infringement. The court was therefore requested to reject the plaintiff's claim against it.

The court of First Instance ascertained the facts

In 1991, the pesticide registration notice issued by the Ministry of Agriculture of the People's Republic of China stated that the provisional registration number LS 91011 was a BASF pesticide registered under the Chinese name “Bismuth 98% granule”, the chemical name of the pesticide is “3,5-dimethyl-tetrahydro-2H-1,3,5-thiadiazine-2-thione” and the chemical structural formula of the pesticide is also registered.

On December 21,1992, BASF filed a patent application with the Patent Office of the People's Republic of China for an invention entitled“Preparation of basically dust-free tetrahydroxy-3,5-dimethyl-1,3,5-thiadiazide-2 thione particles”, the patent was granted on February 19,1997(patent no. Zl 92115325.2) and remains in force.

The patent claims state that:

1. A method for preparing tetrahydro-3,5-dimethyl-1,3,5-thiadiazine-2-thione particles as shown in formula (I) , which are essentially dust-free,

in which methyl amine (II) reacts with carbon disulfide (III) and formaldehyde (IV) or methyl ammonium salt of n-methyldithiocarbamate (V) reacts with formaldehyde (IV) , the reaction is carried out in the presence of at least one of the alkyl diamines shown in formula (VI) , 0.1-10 mol% on the basis of compound (II) ,

R1-NH-A-NH-R2(VI)

in the formula, R 1 and R 2 independently represent hydrogen or C1-C4 alkyl groups, a is 1,2-ethylidene, 1,3-propylidene, or 1,4-butyl bridges, and these bridges can carry 1-4 C1-C4 alkyl groups.

The description of the patent reads as follows: “The aim of the invention is to provide a more convenient method for preparing granular tetrahydro-3,5-dimethyl-1,3,5-thiadiazine-2-thiophenone.”.

Notary No. 4371 of the Beijing Haidian District Notary Office No. 2 of the People's Republic of China issued on 23 November 2006, the process by which the principal agent of BASF purchased the products in question from Sunshine Crawford on 15 November 2006 was notarized. The outer packaging of the “Ridge Xin integrated soil disinfectant” sold by Sunshine Crawford Company is labeled as Nantong Shizhuang company and its agent is Sunshine Crawford Company. According to the invoice issued by Sunshine Crawford, the unit price of the products involved in the case is 45 yuan per kilogram, and the quantity is 20 kilograms, and the amount is 900 yuan. In addition, the principal agent of BASF obtained a brochure of Sunshine Crawford during the above-mentioned purchase process.

The inspection report completed by BASF on 3 May 2007 showed that the agricultural centre of the BASF Department of Agricultural Chemicals carried out an efficient, liquid chromatographic analysis of the products in question, which had been purchased by the aforementioned notary and mailed to the company. The results show that the products of Nantong Shizhuang company contain three kinds of typical impurities (registration number: 277939,277940,277455) , two of which are cotton type and heterocyclic ring are connected by vinyl bridge. BASF claims that these characteristics are typical of the use of the patent-related methods used in the production of minlong products, and that Nantong Shizhuang's products used the patent-related methods.

The test report of BASF (China) Co. , Ltd. , which was issued by the testing center of Shanghai Pesticide Research Institute on May 21,2007, shows that Nantong Shizhuang Co. , Ltd. , there were one main peak and three sub-peaks in the chromatogram of the related products, which corresponded to one main peak and three sub-peaks respectively in the chromatogram of the MEILONG products produced by BASF Company. BASF contends that the three sub-peaks correspond to the three typical impurities in question.

In addition, Nantong Shizhuang and Sunshine Crawford signed an agency agreement on July 4,2006. Nantong Shizhuang authorized Sunshine Crawford to act as an agent for the sale of Nantong Shizhuang in Yunnan and Guangdong provinces, zhuang company production involved in the case of“Ridge Xin comprehensive soil disinfectant” products. The two sides agreed: 2006 sales volume of 1 ton, 2007 sales volume of 3 tons, 2008 sales volume of 5 tons, the unit price of 24,000 yuan per ton. During the contract period, from September 2006 to July 2007, Nantong Shizhuang company supplied 3000 kg of“Longxin comprehensive soil disinfectant” from Sunshine Crawford Company, sunshine Crawford returned 500 kg on 16 July 2007.

BASF will pay RMB900 for material evidence, RMB2,500 for notarization, RMB4,740 for testing and RMB35,715 for legal fees.

The result of the court of first instance

The patent granted to the plaintiff BASF Company as the patentee of the invention“Preparation of essentially dust-free tetrahydroxy-3,5-dimethyl-1,3,5-thiadiazine-2-thione particles”, rights should be protected by Patent law of the People's Republic of China. No entity or individual may implement its patent without the permission of the plaintiff BASF Company, that is, it shall not use its patented method or use, promise to sell, sell or import products directly obtained in accordance with the patented method for the purposes of production and operation.

The focus of the dispute between the two parties in this case is whether the product involved in the patent method of the plaintiff BASF Company is a new product; Whether the defendant Nantong Shizhuang Company used the case-related patent method to manufacture and sell the case-related“Ridge Xin comprehensive soil disinfectant” products and whether it should bear the corresponding legal liability; Whether the defendant Sunshine Crawford Co. , Ltd. shall bear the corresponding legal liability for the act of selling the involved“Longxin comprehensive soil disinfectant”.

* * * as to whether the products covered by the plaintiff BASF's patented method are new products.

According to the relevant provisions of our patent law, where a patent infringement dispute involves the invention of a method for manufacturing a new product, the unit or individual manufacturing the same product shall provide that the method for manufacturing the product is different from the method for manufacturing the patent, proof. A new product refers to a product produced in China, which is compared with a similar product that existed before the date of the patent application, there are obvious differences in the composition, structure, or quality, performance, or function of the products. Whether it is a new product shall be proved by the plaintiff, BASF. According to the existing evidence in this case, before the date of the patent application, the pesticide registration announcement issued by the Pesticide Inspection Institute of the Ministry of Agriculture of our country included the products involved in the patent case of the plaintiff BASF Company, the plaintiff's patent specification also stated that the purpose of the patent was to provide a more convenient method for the preparation of the product, so the product in question was not a new product. The plaintiff, BASF, argued that the product in question was a new product on the ground that the patented method in question contained three characteristic impurities, and therefore the defendant, Nantong Shizhuang, should bear the burden of proof, the court of First Instance did not give its support.

Second, whether the defendant Nantong Shizhuang Company used the patent method to manufacture and sell the products involved in the case and whether it should bear the corresponding legal liability.

The plaintiff, BASF Company, accused the defendant, Nantong Shizhuang company, of using the patented method for the production and sale of the alleged“Longxin integrated soil disinfectant”, which is not a new product, therefore, plaintiff BASF shall bear the burden of proof accordingly. According to the test reports issued by the plaintiff BASF Company and the Testing Center of the Shanghai Pesticide Research Institute, the defendant Nantong Shizhuang company produced and sold“Ridge Xin comprehensive soil disinfectant” product contains three kinds of characteristic impurities, and the impurities in the two cotton-type heterocyclic through vinyl bridge connected. Although the defendant Nantong Shizhuang Company claimed that the above-mentioned inspection report was self-tested or commissioned by the plaintiff, the products tested were all notarized products purchased in connection with the case, and the two inspection reports could corroborate each other, therefore, the defendant Nantong Shizhuang Company's defense claims, based on insufficient, the court of first instance inadmissible.

The plaintiff, BASF, argued that the three characteristic impurities were typical of the impurities that occurred in the preparation of the product using the patented method in question, namely, alkylenediamine, which was added to the preparation of the product by the patented method in question, to form these three impurities. The defendant, Nantong Shizhuang Company, claimed that it did not add alkylenediamine to the production of the product in question. Instead, it used other additives, such as Sodium dodecyl sulfonate, and changed the internal structure of the reactor to prepare the melon granule, however, it did not prove that the addition of additives such as Sodium dodecyl sulfonate would result in the formation of these three impurities, and therefore the court of first instance dismissed its defense. The defendant Nantong Shizhuang Company also proposed that the existence of storage containers, residues, equipment not thoroughly clean and other reasons may lead to the residue of impurities, but it failed to prove this further. Therefore, the court of first instance found that the defendant Nantong Shizhuang Company's production and sale of the case-related“Longxin comprehensive soil disinfectant” product used the same method as the patent method used in the case, violating the patent rights involved in the case, the defendant Nantong Shizhuang Company shall bear the legal responsibility for stopping the infringement, compensating the loss and reasonable litigation expenses.

Third, on the defendant Sunshine Crawford Company should be on the sale of the case, “Longxin integrated soil disinfectant” products to assume the corresponding legal responsibility.

According to the relevant provisions of the patent law of our country, the sale of a product which is made and sold without the permission of the patentee and obtained directly in accordance with the patent method for the purpose of production and operation can prove the legal origin of the product, no liability for compensation. The defendant Sunshine Crawford Company has proved that the products it sold were legally obtained from the defendant Nantong Shizhuang company, and the defendant Nantong Shizhuang Company has also approved this, so the defendant Sunshine Crawford Company, they should not be liable for their related acts, but they should be liable for stopping the sale of related products.

In conclusion, the plaintiff, BASF Company, requests the court to order the defendant, Nantong Shizhuang company, to bear the legal liability for cessation of the infringement, compensation for economic losses and reasonable expenses of the lawsuit, and to request the court to order the defendant, Lord Sunshine Crawford, division to assume the legal responsibility to stop sales, justified, the court of first instance to support. In view of the fact that the defendant Nantong Shizhuang Company was ordered to stop the production and sale of the products involved in the case using the patented methods involved in the case, the plaintiff BASF Company's claim to destroy the products involved in the case was not based on sufficient evidence, the court of first instance did not support it. With regard to the amount of compensation for economic losses, the plaintiff's request for compensation was too high and it did not submit sufficient evidence to prove it, which was not fully upheld by the court of first instance. The court of first instance will make a decision according to the nature, duration and degree of subjective fault of the tort of Nantong Shizhuang Company.

The court of First Instance General Principles of the Civil Law of the People's Republic of China in accordance with Article One hundred and thirty-four (1) , (7) , Article 11(2) , Article fifty-seven (2) , article 60 and article sixty-three (2) of the Patent law of the People's Republic of China The sentence is as follows:

On the effective date of this judgment, Nantong Shizhuang Chemical Co. , Ltd. shall cease the production and sale of the “Longxin integrated soil disinfectant” products manufactured using the patented method involved in the case;

2. Beijing Sunshine Clover Bio-chemical Technology Co. , Ltd. shall, from the effective date of this judgment, stop the sale of the product involved in the case, “Ridge-xin comprehensive soil disinfectant”;

Nantong Shizhuang Chemical Co. , Ltd. shall, within 10 days from the commencement of this judgment, indemnify BASF Company for economic loss of RMB two hundred thousand and reasonable expenses of RMB thirteen thousand in this case;

Other claims of BASF are dismissed.

The case acceptance fee of RMB 8,800 shall be borne by BASF Company (paid) , RMB 2,000(paid) and RMB 6,000 by Nantong Shizhuang Chemical Co. , Ltd. (paid within 7 days from the effective date of this judgment) , payment of RMB 800 Yuan shall be made by Beijing Sunshine Clover Bio-chemical Technology Co. , Ltd. (to be paid within 7 days from the effective date of this judgment) .

BASF and Nantong Shizhuang appealed against the original judgment to the Beijing High People's court.

The litigant in the second instance pleads and pleads

BASF company appeals to maintain the original judgment * * * , two; change the original judgment of the third for Nantong Shizhuang Company to compensate its economic losses and stop the reasonable expenses of infringement, and so on 500,000 yuan; rescind the original, the fourth judgment, Nantong Shizhuang Company to destroy the case, “Ridge Xin comprehensive soil disinfectant” products; identified as the case of patent products for new products. The reason is that the amount of compensation determined by the original judgment is too low, and that the infringement of rights by Nantong Shizhuang company lasts a long time, has various kinds and extensive scale, and that BASF Company has suffered serious losses, the fact that a substantial amount of investigative and legal fees was actually spent on the proceedings in the present case; that the alleged infringing products should be destroyed, or not destroyed, is insufficient to stop the infringing acts in question; and that the fact that the patented products in question are new products should be determined, the composition and performance of the patented products involved in the case are different from those of the known products.

Nantong Shizhuang Company appeals to set aside the original trial judgement, according to the law rejected BASF Company's claim. The reasons for this are: the court of first instance found that the facts of the case had no legal basis by means of an ex parte expert report; even if it did not consider the procedural defects of the expert report, the expert opinion of BASF also does not show that the Nantong Shizhuang Company's production method is infringing; the court of first instance has found that BASF's patented product is not a new product and that BASF should, proof that Nantong Shizhuang's production methods used the patented methods in question, otherwise BASF should bear the legal consequences of not being able to provide evidence; the original judgment set the amount of compensation without factual and legal basis.

Sunshine Crawford is subject to the original judgment.

The Court of second instance ascertained the facts

In 1991, the pesticide registration notice issued by the Pesticide Testing Institute stated that the temporary registration number LS 91011 was a pesticide registered by BASF Company under the Chinese name of“Bismuth 98% granule”, the chemical name of the pesticide is “3,5-dimethyl-tetrahydro-2H-1,3,5-thiadiazine-2-thione”. The announcement also registered the chemical structure of the pesticide.

On December 21,1992, BASF filed an application for the invention patent with the former Patent Office of the People's Republic of China. On February 19,1997, BASF was granted the Invention Patent No. ZL 92115325.2, the patentee is BASF Company, and the patent is still valid. The patent claims state that:

“A method for preparing essentially dust-free tetrahydro-3,5-dimethyl-1,3,5-thiadiazine-2-thione particles shown in formula (I) in which methylamine (II) reacts with carbon disulfide (III) and formaldehyde (IV) or methyl ammonium salt (V) of n-methyldithiocarbamate reacts with formaldehyde (IV) in the presence of at least one of the alkyl diamines shown in formula (VI) in the presence of 0.1-10 mol% on the basis of compound (II) ,

R1-NH-A-NH-R2(VI)

in the formula, R 1 and R 2 represent hydrogen or C1-C4 alkyl groups independently of each other. A is a 1,2-ethyl, 1,3-propylidene, or 1,4-butyl bridge, and these bridges can carry 1-4 C1-C4 alkyl groups.”

The description of the patent reads as follows: “The aim of the invention is to provide a more convenient method for preparing granular tetrahydro-3,5-dimethyl-1,3,5-thiadiazine-2-thiophenone.”.

On November 15,2006, BASF purchased 20 kg of“Longxin integrated soil disinfectant” from Sunshine Crawford, at 45 yuan per kg, for a total of 900 yuan. On the boxes of the products sold by Sunshine Crawford, the manufacturer is listed as Nantong Shizhuang, and the agent is Sunshine Crawford.

The products were High-performance liquid chromatography by the agricultural center of BASF's Agrochemicals Division. The results show that the products of Nantong Shizhuang company contain three kinds of typical impurities (registration number: 277939,277940,277455) , among which two cotton-like heterocycles are connected by vinyl bridge. BASF claims that the above-mentioned features are typical of the production of cotton using the patented method in question, and that Nantong Shizhuang's products used the patented method in question.

The test report of BASF (China) Co. , Ltd. , issued by the testing center of the Shanghai Pesticide Research Institute on May 21,2007, on the above-mentioned notarized purchased products, shows that Nantong Shizhuang Co. , there were one main peak and three sub-peaks in the chromatogram of the products involved, which corresponded to one main peak and three sub-peaks respectively in the chromatogram of the MEILONG products produced by BASF Company. BASF argues that the three sub-peaks above correspond to the three typical impurities in question.

In addition, Nantong Shizhuang Company and Sunshine Crawford Company on July 4,2006 signed the“Agency Agreement,” Sun Crawford authorized Nantong Shizhuang Company to act as an agent for the sale of Nantong Shizhuang Company in Yunnan and Guangdong provinces. The two sides agreed: 2006 sales volume of 1 ton, 2007 sales volume of 3 tons, 2008 sales volume of 5 tons, the unit price of 24,000 yuan per ton. During the contract period, from September 2006 to July 2007, Nantong Shizhuang company supplied 3000 kg of"Longxin comprehensive soil disinfectant" from Sunshine Crawford Company, sunshine Crawford returned 500 kg on 16 July 2007.

BASF will pay RMB900 for material evidence, RMB2,500 for notarization, RMB4,740 for testing and RMB35,715 for legal fees.

The above facts are supported by the relevant patent documents, Notarization No. 4371(2006) of the Notary Office of Haidian District No. 2 of Beijing Municipal Government of the People's Republic of China issued on November 23,2006, Beijing Haimin Certificate, purchase invoice, brochure of Sunshine Crawford Company, inspection report issued by BASF Company and Testing Center of Shanghai Municipal Pesticide Research Institute, Relevant Material Evidence Fee, notarization fee, inspection fee invoice and payment voucher of attorney fee, Pesticide Registration Notice of 1991, Agency Agreement, Supply Certificate and two certificates, and statements of the parties concerned.

The result of the Court of second instance

BASF Company is the patentee involved in the case, whose patent rights are protected by our patent law. No entity or individual may implement its patent without the permission of BASF Company, that is, it shall not use its patented method or use, promise to sell, sell or import products directly obtained in accordance with the patented method for the purposes of production and operation.

According to the relevant provisions of our patent law, where a patent infringement dispute involves the invention of a new product manufacturing method, the unit or individual manufacturing the same product shall provide proof that the manufacturing method of the product is different from the patented method, but BASF First had to prove that the product had been made in accordance with the patented method in question.

The so-called“New product” should refer to the product produced in our country, which is compared with the same kind of product that existed before the date of patent application, there are obvious differences in the composition, structure, or quality, performance, or function of the products. The patent in question relates to a method for preparing essentially dust-free tetrahydro-3,5-dimethyl-1,3,5-thiadiazine-2-thione particles, and the invention is described in the patent specification, the purpose is to provide a more convenient method for the preparation of MEGLON products. Prior to the date of the patent application, the pesticide registration notice issued by the pesticide testing institute includes BASF's patent-related products, “3,5-dimethyl-tetrahydro-2H-1,3,5-thiadiazine-2-thione”, therefore, the products based on the patents in question are compared with similar products that existed prior to the date of the patent application, there is no obvious difference in the composition, structure or quality, performance or function of the product, and it is not a new product.

Since the products manufactured by the method in question are not new products, BASF should bear the burden of proof to prove that the alleged infringing products manufactured by Nantong Shizhuang Company were manufactured by the method in question. BASF submitted two test reports, one made by BASF itself, the other by BASF unilaterally commissioned the Shanghai Municipal Pesticide Research Institute Testing Center to make, the two reports are consistent. Since the testing center of the Shanghai Pesticide Research Institute has no stake in the case, Nantong Shizhuang should submit evidence to prove the contrary if it disputes the test conclusion. Although Shizhuang of Nantong claimed that it did not add alkylenediamine, which is used in the patented method, to the product in question, it was prepared by using other additives such as Sodium dodecyl sulfonate and changing the internal structure of the reactor, but it did not, evidence that the addition of additives such as Sodium dodecyl sulfonate will result in the formation of the three characteristic impurities mentioned in the test report. Nantong Shizhuang also argued that the presence of residues in storage containers, equipment not thoroughly cleaned and other reasons may lead to impurities residual, the defense of the existence, but there is no evidence to support. Therefore, the evidence submitted by BASF Company is sufficient to prove that Nantong Shizhuang Company's production and sale of the“Longxin integrated soil disinfectant” products involved in the case used the same method as the patented method and method involved in the case, nantong Shizhuang Company should bear the legal responsibility of stopping the infringement, compensation for the loss and reasonable expenses of the lawsuit.

The court of First Instance ordered the Nantong Shizhuang Company to stop producing and selling the products involved in the case using the patented methods involved in the case, which was enough to stop the infringement. The Nantong Shizhuang company could no longer make illegal profits from the infringement, therefore, BASF's appeal to destroy the products involved in the case was not based on sufficient evidence, the court of second instance did not support. The amount of compensation determined by the court of first instance was not improper, having regard to the nature, duration and degree of subjective fault of the Nantong Shizhuang Company's tort.

To sum up, BASF Company, Nantong Shizhuang Company's grounds of appeal can not be established, the appeal requested the court of second instance not to support. The original judgment found the facts clear and the applicable law correct. In accordance with Article One hundred and fifty-three (1) of the civil procedure of the People's Republic of China * * * * * The judgment is as follows:

The appeal was dismissed and the sentence was upheld.

The first-instance case fee of RMB eight thousand, eight hundred is to be borne by BASF company (already paid) and by Nantong Shizhuang Chemical Co. , Ltd. (to be paid within 7 days from the effective date of this judgment) , beijing Sunshine Clover Bio-chemical Technology Co. , Ltd. shall be responsible for RMB 800(to be paid within 7 days from the effective date of this judgment) . The fee of eight thousand, eight hundred Yuan for the second instance case is RMB 4,000 and RMB 500(already paid) for BASF and RMB Four Thousand, three hundred (already paid) for Nantong Shizhuang Chemical Co. , Ltd. .

Agent's opinion

The plaintiff's attorney, Zhang Pingyuan, argued:

The case concerns method patents, which were filed prior to 1993; the prosecution date is 2007. Therefore, the case has the following issues: the identification of new products, the establishment of method patent infringement. The following are discussed separately.

(1) identification of new products

The plaintiff argued that the patented product in question was a new product, for the following reasons:

(1) prior to the application for this patent, there was no production or sale of this patented product in China.

(2) the composition and performance of the patented product are different from those of the known product. The patented method product comprises the three characteristic ingredients mentioned above, which agglomerate with melon, thereby reducing the production of small particles of dazomet. In addition, the dimers themselves are active.

(3) in the prior art, there is no disclosed minlon product containing the above characteristic component.

The court held that a new product was a product produced on a secondary basis in the country and compared to a product of the same kind that existed prior to the date of the patent application, in the composition of the product, structure or its quality, performance, functional methods have a clear difference. As BASF obtained a pesticide registration certificate for the product prior to the date of this patent application, and the plaintiff's specification states that the purpose of the patent is to provide a more convenient method for the preparation of the melon product, the patented product is not a new product.

(2) the establishment of method patent infringement

One of the difficulties in method patent infringement is that it is difficult for the patentee to obtain direct evidence of the defendant's use of the patented method. The patentee could not go to the defendant's factory to obtain evidence of the defendant's method of production. In some cases, the patentee applies to the court for evidence preservation of the defendant's production method, but whether the evidence preservation can obtain the defendant's real production method has great uncertainties.

In this case, the court used circumstantial evidence, that is, the characteristic by-products determined by the product test report, to determine that the product was produced using a patented method and thus constituted a tort. As mentioned above, alkylenediamine is added to the patent method, and the resulting product has the components with the above characteristics. Without the addition of alkylenediamines in the production method of the prior art, it is not possible for the produced melon product to contain the above-mentioned characteristic components.

This case is People's Court in a book on patent cases, patent committee of China Intellectual Property Institute, China Institute of Applied Law, Intellectual Property Press, 2010

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