Copyright 2016 by Stanford University

BAI Wanqing

v.

Chengdu Hard-To-Find Items Marketing Services Center et al.,

A Utility Model Patent Infringement Dispute

Guiding Case No. 55

(Discussed and Passed by the Adjudication Committee of the Supreme People’s Court

Released on November 19, 2015)

CHINA GUIDING CASES PROJECT

English Guiding Case (EGC55)

October 28, 2016 Edition∗

∗

The citation of this translation of the Guiding Case is:《柏万清诉成都难寻物品营销服务中心等侵害实

用新型专利权纠纷案》 (BAI Wanqing v. Chengdu Hard-To-Find Items Marketing Services Center et al., A Utility

Model Patent Infringement Dispute), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding

Case (EGC55), Oct. 28, 2016 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-55. The original,

Chinese version of this case is available at 《 中 国 法 院 网 》 (WWW.CHINACOURT.ORG),

http://www.chinacourt.org/article/detail/2015/11/id/1756743.shtml. See also 《最高人民法院关于发布第 11批指

导性案例的通知》 (The Supreme People’s Court’s Notice Concerning the Release of the 11th

Batch of Guiding

Cases), Nov. 19, 2015, http://www.chinacourt.org/article/detail/2015/11/id/1756734.shtml.

This document was primarily prepared by HUANG Li, Oma Lee, Doug Proctor, Sean Webb, and Dr. Mei

Gechlik; it was finalized by Dimitri Phillips and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs,

adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more

comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases

Project. The following text is otherwise a direct translation of the original text released by the Supreme People’s

Court.

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2

Keywords

Civil Infringement of a Utility Model Patent Scope of Protection

Technical Terms Infringement Comparison

Main Points of the Adjudication

The scope of protection of a patent should be clear. If there is an obvious flaw in the

statements of a utility model patent claim and the specific meaning of the technical terms in the

claim [still] cannot be determined by combining the specification of the patent involved in a case,

attached figures, common knowledge in the art, relevant existing technology, etc., resulting in

the scope of protection of the patent being obviously unclear, then [a people’s court] cannot

determine that the allegedly infringing technical solution constitutes an infringement of rights

because there is no way to conduct a substantively meaningful infringement comparison [of the

claim] with the allegedly infringing technical solution.

Related Legal Rule(s)

Article 26, Paragraph 4 and Article 59, Paragraph 1 of the Patent Law of the People’s

Republic of China1

Basic Facts of the Case

Plaintiff BAI Wanqing was the patentee of a utility model patent named “anti–

electromagnetic pollution suit”, with patent number 200420091540.7 (hereinafter referred to as

the “patent involved in the case”). The technical features [stated] in Claim 1 of the patent

involved in the case were:

A. a type of anti–electromagnetic pollution suit, including a top and a

bottom;

B. the fabric of the suit does not have a metallic net or film with a

shielding function;

C. a metallic net or film with a shielding function is composed of either

metallic filaments that have high magnetic conductivity2 and no residual

magnetism or metallic powder [of the same quality].

1 《中华人民共和国专利法》(Patent Law of the People’s Republic of China), passed and issued on

Mar. 12, 1984, effective as of Apr. 1, 1985, amended three times, most recently on Dec. 27, 2008, effective as of Oct.

1, 2009, http://www.sipo.gov.cn/zcfg/flfg/zl/fl/201509/t20150902_1169595.html.

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The patent specification clearly stated that the purpose of the patent was to offer a type of anti–

electromagnetic pollution suit that was low cost, effective, and had a wide scope of protection.

Its features were that the fabric of the said suit did not have a metallic net or film which had a

shielding function and which was composed of either metallic filaments that had high magnetic

conductivity and no residual magnetism or metallic powder [of the same quality]. Copper wires

[with thickness of] 5 to 8 si3 that were sold on the market could be used as the said metallic

filaments; soft-iron powder or the like could be used as the said metallic powder. Figures 1 and

2 that were attached clearly showed that, without changing the existing styles and fabric features

of the suit, the protective suit could be [made] to form a net-like structure with meshes by

interweaving electrically conductive metallic filaments into the fabric or by using any processing

method, including spraying, applying, spreading, soaking and dyeing, to compound electrically

conductive metallic powder with the fabric.

On May 28, 2010, the Chengdu Hard-To-Find Items Marketing Services Center4 sold a

Tianxiang Brand anti-radiation top produced by Shanghai Tianxiang Industrial Co., Ltd.5 The

sale price of the product was RMB 490 and its technical features were:

a. a type of anti–electromagnetic pollution top;

b. the fabric of the top does not have a metallic protective net with a

shielding function;

c. a metallic protective net with a shielding function is composed of

stainless-steel metallic fibers.

On July 19, BAI Wanqing, on the grounds that the Tianxiang Brand anti-radiation top sold by the

Chengdu Hard-To-Find Items Marketing Services Center and produced by Shanghai Tianxiang

Industrial Co., Ltd. (hereinafter referred to as the “allegedly infringing product”) infringed on the

patent involved in the case, brought a civil lawsuit before the Intermediate People’s Court of

Chengdu Municipality, Sichuan Province, requesting [that the court] order the Chengdu Hard-

To-Find Items Marketing Services Center to immediately stop selling the allegedly infringing

product and [order] Shanghai Tianxiang Industrial Co., Ltd. to stop producing and selling the

2 The original text reads “导磁率” (“magnetic conductivity”), which, as discussed later in the Guidng Case,

is also known as “磁导率” (“magnetic permeability”) and measures the degree of magnetization that a material

obtains in response to an applied electromagnetic field. For more discussion of the topic, see 导磁率 (Magnetic

Conductivity), at http://www.chinabaike.com/m/d/1636561.html; Magnetic Permeability, at

http://www.electrical4u.com/magnetic-permeability. 3 The unit “丝” is translated here as “si”, which is a unit commonly used in China to measure the thickness of

industrial film products. One “si” equals 0.01mm. See, e.g., Si (絲) Conversion Chart, http://www.convert-

me.com/en/convert/weight/csi.html. 4 The name “成都难寻物品营销服务中心” is translated here literally as “Chengdu Hard-To-Find Items

Marketing Services Center”. 5 The name “上海添香实业有限公司” is translated here literally as “Shanghai Tianxiang Industrial Co., Ltd.”

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allegedly infringing product and to pay [BAI Wanqing] RMB 1 million as compensation for

economic losses.

Results of the Adjudication

On February 18, 2011, the Intermediate People’s Court of Chengdu Municipality,

Sichuan Province, rendered the (2010) Cheng Min Chu Zi No. 597 Civil Judgment, rejecting

BAI Wanqing’s litigation requests. After the judgment was pronounced, BAI Wanqing appealed.

On October 24, 2011, the Higher People’s Court of Sichuan Province rendered the (2011) Chuan

Min Zhong Zi No. 391 Civil Judgment, rejecting BAI Wanqing’s appeal and upholding the

original judgment. Unconvinced, BAI Wanqing applied to the Supreme People’s Court for a

retrial. On December 28, 2012, the Supreme People’s Court ruled to reject his6 application for a

retrial.7

Reasons for the Adjudication

In the effective ruling, the court opined:8

The focal point of the dispute in this case was

whether the allegedly infringing product9 produced by Shanghai Tianxiang Industrial Co., Ltd.

and sold by the Chengdu Hard-To-Find Items Marketing Services Center infringed on BAI

Wanqing’s “anti–electromagnetic pollution suit” utility model patent.

Article 26, Paragraph 4 of the Patent Law of the People’s Republic of China provides:

The claims should, using the specification [of the claims] as a basis, clearly and

concisely define the scope of the patent protection requested.

6 Plaintiff BAI Wangqing was male. See, e.g., （2011）川民终字第 391号民事判决 ((2011) Chuan Min

Zhong Zi No. 391 Civil Judgment), http://wenshu.court.gov.cn/Content/Content?DocID=584806be-e2ff-4b8e-bb73-

cc9429fc0d39. 7 The ruling rendered by the Supreme People’s Court was（2012）民申字第 1544民 事 裁 定 ((2012) Min

Shen Zi No. 1544 Civil Ruling), http://wenshu.court.gov.cn/content/content?DocID=eff49bc4-b647-11e3-84e9-

5cf3fc0c2c18. 8 The original text does not specify which court opined. Given the context, this should be the Supreme

People’s Court. 9 The original text uses “被控” (“be charged with”), instead of “被诉” (“alleged”), in the abbreviated

expression “被诉侵权产品” (the “allegedly infringing product”) defined earlier in the Guiding Case to refer to “the

Tianxiang Brand anti-radiation top sold by the Chengdu Hard-To-Find Items Marketing Services Center and

produced by Shanghai Tianxiang Industrial Co., Ltd.”

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Article 59, Paragraph 1 provides:

The scope of protection for an invention or a utility model patent is subject to the

content of the claims. The specification and attached figures can be used to

interpret the content of the claims.

It is thus clear that accurate definition of the scope of protection of a patent is a prerequisite for

determining whether an allegedly infringing technical solution constitutes an infringement of

rights. If there is an obvious flaw in the writing of a claim and the specific meaning of the

technical terms in the claim still cannot be determined by combining the specification of the

patent involved in a case, attached figures, common knowledge in the art, relevant existing

technology, etc., [resulting in] the scope of protection of the patent being unable to be accurately

determined, then there is no way to conduct a meaningful infringement comparison [of the claim]

with the allegedly infringing technical solution. Consequently, with respect to a patent whose

scope of protection is obviously unclear, [a people’s court] cannot determine that the allegedly

infringing technical solution constitutes an infringement of rights.

In this case, it was hard to determine the specific scope of [the expression] “high

magnetic conductivity” [appearing] in Technical Feature C of Claim 1 of the patent involved in

the case. First, according to evidence provided by BAI Wanqing, although magnetic

permeability is sometimes called magnetic conductivity, [the former] is further distinguished as

absolute magnetic permeability and relative magnetic permeability. According to different

specific conditions, there are also other concepts, including initial magnetic permeability μi and

maximum magnetic permeability μm. Different concepts have different meanings and the

calculation methods are not exactly the same. Magnetic permeability is not a constant and when

the magnetic field intensity H changes, changes to magnetic permeability can immediately be

observed.

However, the specification of the patent involved in the case did not record whether, in

the technical solution of the patent involved in the case, the [expression] magnetic conductivity

referred to relative magnetic permeability, absolute magnetic permeability, or other concepts;

nor did [the specification] record the specific scope of [the expression] high magnetic

conductivity or the objective conditions for calculating magnetic conductivity, including

magnetic field intensity H. People skilled in the art could hardly determine, accordingly to the

specification of the patent involved in the case, the specific meaning of [the expression] high

magnetic conductivity as stated in the patent involved in the case.

In addition, looking at relevant evidence submitted by BAI Wanqing, [the court could

conclude that BAI Wangqing] had proven that expressions, including high magnetic permeability

and high magnetic conductivity, were indeed adopted in some existing technologies. However,

according to differences in technical areas and magnetic field intensity, the meaning of the so-

called high magnetic conductivity could be very broad. [Magnetic conductivity] ranging from 80

Gs/Oe to 83.5×104 Gs/Oe was all claimed to be high magnetic conductivity by BAI Wanqing.

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The evidence provided by BAI Wanqing could not prove that within the technical area to which

the patent involved in the case belonged, people skilled in the art had a relatively unified

understanding of the meaning or the scope of [the expression] high magnetic conductivity.

Lastly, BAI Wanqing claimed that people skilled in the art could determine a specific

lower safety limit depending on the particular use environment and then determine the required

magnetic conductivity. This claim was actually [made] to bring into the scope of protection of

the patent involved in the case all the circumstances under which the anti-radiation objective

could be achieved. The scope of protection was too broad and lacked [both] a factual and a legal

basis.

In conclusion, according to the specification of the patent involved in the case and the

relevant evidence provided by BAI Wanqing, people skilled in the art could hardly determine the

specific scope or the specific meaning of [the expression] “high magnetic conductivity”

[appearing] in Technical Feature C of Claim 1. [As a result,] the scope of protection of Claim 1

could not be accurately determined and there was no way to conduct a substantively meaningful

infringement comparison [of the claim] with the allegedly infringing product. Therefore, it was

not improper [for the court] to determine in the second-instance judgment that BAI Wanqing

could not adduce evidence to prove that the allegedly infringing product fell within the scope of

protection of the patent involved in the case.

(Adjudication personnel of the effective ruling: ZHOU Xiang, LUO Xia, and DU Weike)