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Prior Art Defense Codified
Statutory defense to infringement
Infringement shall not be found if evidence exists
proving that the accused infringing technology
belongs to prior art
Details provided in Supreme People’s Court’s
draft Judicial Interpretation circulated in June
2009
– Single prior art shall be relied upon
– Variations allowed under principle of doctrine of
equivalence
©2009 Foley & Lardner LLP
International Patent
Exhaustion
Previous law provided only for domestic exhaustion,
applied to products sold by the patentee in China
New law provides for both domestic and
international exhaustion of patent rights
– Importation of any patented product or product directly
obtained from the patented process, after the said product
is sold by the patentee or by its licensed entity, shall not
be deemed an infringement upon a patent right
– No distinction between restricted and unrestricted sales,
so unclear whether parties can contractually avoid
international exhaustion
©2009 Foley & Lardner LLP
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