China’s Beijing Intellectual Property Court on September 9 ruled in favor of the China National Intellectual Property Administration (CNIPA), the country’s Patent Office, in its lawsuit against British drugmaker GlaxoSmithKline, impleading Chinese drugmaker Chia Tai Tianqing Pharmaceutical Group Co., Ltd. as the third-party defendant.
GSK filed a petition with the CNIPA to invalidate a patent owned by Chia Tai Tianqing for a dose inhaler in July 2019. The CNIPA denied the petition, holding that the patented design was not fully disclosed in a single prior-art reference, in January 2020. GSK appealed the agency’s decision to the Beijing Intellectual Property Court in July 2020. The Beijing Intellectual Property Court upheld the CNIPA’s decision on the following grounds.
The Interpretation (II) of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Dispute Cases (《最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释(二) 》) came into force on April 1, 2016. Article 14 of the interpretation provides that a people's court shall, when determining an ordinary consumer's knowledge and cognitive capability in terms of the design, take into account the design space of the products of the same or similar category in terms of the patented design, at the time when the alleged infringing act occurs. Where there is much design space, the people's court may determine that in general an ordinary consumer is unlikely to notice the minor differences between different designs. Where there is not much design space, the people's court may determine that in general an ordinary consumer is likely to notice the minor differences between different designs.