Page 11 - 2020 Policy Watch-Comparison of Secret Sale Patent

P. 11

The American Chamber of Commerce in South China

Under the above Chinese regulations, the patent ap- ?规?浠ヤ?涓??娉??锛?????瀵?????涓???宠?娌?
plication still features novelty if the patent application ???澶?负??????风?锛???╃?璇蜂??舵????棰?
on secret sale is not available to the public. In perspec- ?с????ヨ?浜ф??归?涓??杩??绀轰?涓??涓???藉?
tive of intellectual property, it shows great difference 浜????瀵???????宸?????澶с??
between China and the US on ??ecret sales??.
Compared to the US, a significantly different influence 涓???界?姣??涓??瀵逛???????纰???????涓??
of the on-sale bar on the patentability of an invention ???浜???╂?х?褰卞?宸ㄥぇ宸????互?ㄥ????涓??
in China can be seen in the case of Sun Gang v. China?? 澶??濮??浼???扮О涓轰??╁?澶??涓?????锛??浠?
Patent Reexamination Board (now called Reexamina- 涓???般??
tion and Invalidation Department of the Patent Of-
fice). 涓??涓??澶??濮??浼??PREB锛????16801?锋???
The China?? Patent Re-Examination Board (PREB) is- 瀹ｅ?璇锋??冲?锛???????02159946.7????????
sued the No. 16801 decision of Examination on Re- ??汉涓??骞跺?16801?锋?璧疯?璁笺???浜??绗??涓?
quest for Invalidation where the patent 02159946.7 绾ф??㈤┏????冲?骞惰?姹?REB???瀹℃???REB
was declared invalid. The patentee refused to accept ???浜??楂?骇娉????捣涓?????浜??楂?骇浜烘?娉?
the decision and thus brought a lawsuit against the ?㈢淮???瀹″??炽??
No.16801 decision. Beijing first Intermediate Court
overruled the decision and requested the PREB to re- 涓????汉涓??姹?汉浜?1999骞?09??09?ョ?璁㈡???浆
view the case. Therefore, PREB filed an appeal to the 璁╁?璁??????剁郴??己???锛?苟涓??涓????汉璐?
Beijing High Court. The Beijing High Court affirmed 璐ｈ?绯讳骇???绗??涓???枫??2000骞?10??19?ワ?璇?
the verdict of the first instance. 姹?汉浣?负渚??涓???规?????″?绛捐?浜у?璐????
The patentee and the claimant signed a technology ??????????″??ゅ?灞辩??挎?渚?????ゅ己??
transfer agreement on 9th September 1999 to jointly ??骇绛??????????涓?20涓??????瑰????涓?害
develop a series of punchy vibration sieves, where the 瀹??璇ュ?绛??甯歌?杞??灏??1500灏??杈惧????涔?
patentee shall be responsible for contacting the first 绗???¤?姹?苟????????瀹??锛????????绁?20
user of the product. On 19th October 2000, the claim- 涓???淬??2001骞?10?????含绉??澶у????姹?汉??
ant, as the supplier, signed a sales and purchase contract ???????ゅ?灞辩??垮?????蜂?楠?????锛????
with Mount. Phoenix Mine of Jincheng Mining Bu- 璇ュ己????ㄧ?楠???????2001骞?11??7?ヨ?姹?汉
reau, to provide the ??unchy classifying sieves for raw ?哄?浜?汉姘??20涓??????肩?涓????エ???姹?汉
coal?? to the Bureau for a price of 200,000 yuan. The ????ら??㈠??板北?ょ?浜?2002骞?12???????蜂?
parties agreed that acceptance of a Bill of Exchange of 绉??????村??????2002骞?11??30?ワ???氦涓??
200,000 yuan would be made once the set of sieves op- ?宠???
erated normally no less than 1500 hours and approved
by technical examination. In October 2001, Beijing
University of Science and Technology, the claimant
and the Mount. Phoenix Mine issued documents of in-
spection and acceptance, proving that the sieve passed
inspection and acceptance. The claimant then issued
the Special Fapiao for Value-added Tax of

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