Research on Legal Application of “Fair Consideration” in Patent Infringement under Bona Fide Acquisition System

DOI: https://doi.org/10.62517/jel.202514524

Author(s)

Huilun Lin1,2,*, Xiangmei Cao1

Affiliation(s)

1School of Intellectual Property, Xihua University, Chengdu, Sichuan, China 2Beijing Lingzhuan Intellectual Property Agency Co., Ltd, Beijing, China *Corresponding Author

Abstract

Article 77 of the Patent Law stipulates that if a bona fide user, a seller or a person who offers to sell an infringing patent product may claim in infringement litigation that an infringing patent product is originated lawfully, he/she will be exempted from indemnification. The notwithstanding clause in Article 25.1 of Interpretations of the Supreme People’s Court on Certain Issues Concerning the Application of Law in the Trial of Patent Infringement Cases II implemented on April 1, 2016 specifies the judicial rules of the “fair consideration” of a bona fide user. The infringer is not necessary to stop infringement as long as he/she can prove that he/she “does not know” the infringing acts and has paid the fair consideration for the above infringement. We should know how the Patent Law and its judicial interpretation impact the handling of patent infringement disputes. In addition, the intrinsic connection among legal provisions and their value needs to be further explored. The rules of counterargument of the “fair consideration” are defined by judicial interpretation. Its legislative wisdom needs to be interpreted in the context of the traditional civil law theory (the bona fide acquisition system).

Keywords

Patent Infringement; Reasonable Fees; Non-Cessation Infringement; Bona Fide Acquisition

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