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ause 2, Article 11 of Patent Law of design patent products. See reference case of (2012)
the People’s Republic of China: YUE GAO FA MIN SAN ZHONG ZI NO.97.
After a design patent right is 4. The act of recycling. Recycling a product of a
granted, no unit or individual may specific design and then using it to package the
exploit the patent without permission same or similar products would be deemed an act of
of the patentee, i.e., it or he may not, product manufacturing, “new drinks in old bottle.”
for production or business purposes, However, if one recycles the used bottles with a
manufacture, offer to sell, sell or design patent then refills and sells its own drinks
import the design patent products. to take advantage of the beauty of the patented
bottles, it shall be deemed an act of producing new
Our Comments design patent product, but not exhaustion of patent
rights. The application of the patent right exhaustion
In general, the types of the act is limited to the circulation of patented products,
of manufacturing design patent while suitable objects are restricted to the patented
products include the following: products legally put on the market. See reference
design infringement case of Henan Weixue Beer
1. The physical act of production; Group Co., Ltd. V. Jiyuan Wangwushan Blackcurrant
Beverage Co., Ltd.
2. Commissioned production.
In this case, although production 5. The act of “supervision”, “trademark” and
is beyond the Defendant’s others. Marking the words “supervision” as well
business scope, commissioned as the defendant’s information (such as the name
manufacturing cannot be ruled or trademarks) on the product or the packaging
out. The Defendant’s trademarks will be deemed to have a legal effect that indicates
could be found from the product the accused products were produced by the
images, which indicated that defendant, and will generally be identified as an act
the third party was entrusted by of manufacturing. Of course, it is not sufficient to
the Defendant for production. firmly identify the defendant as the producer of the
Therefore, as the commissioning accused products only by the mark “supervision” or
party and the ordering party, the trademarks on the package of the products. See
the Defendant carried out an act reference case of (2018) YUE MIN ZHONG NO.2493.
of manufacturing the accused
infringing products. See reference China will further improve its punitive damages
case of (2018) YUE 73 MIN CHU system for intellectual property infringement. As
NO.2552. the source of infringement, the act of manufacturing
design patent products will be the key target for
3. The act of assembly. This combating design infringement by the people’s
refers to assembling individual courts and IP administrative law enforcement
design patent components into a agencies at all levels.■
complete design patent product.
For example, consider a design The article was written by Mr. Bingbing NING in Jiaquan IP law,
patent product titled “flashlight.” China. The firm provides award-winning services for the clients
If one purchases the casings of the at home and abroad to develop, acquire and enforce intellectual
flashlight from company A and the property rights in China. With over 230 intellectual property
inner parts from company B, then professionals, our expertise stretches across prosecution, litigation,
assembles those into the patented and invalidation of trademarks, patents and copyrights. Please
product to sells, such an action contact mail@jiaquanip.com for questions or visit www.jiaquanip.
would be defined as manufacturing com for more information.
South China Business Journal 4
the People’s Republic of China: YUE GAO FA MIN SAN ZHONG ZI NO.97.
After a design patent right is 4. The act of recycling. Recycling a product of a
granted, no unit or individual may specific design and then using it to package the
exploit the patent without permission same or similar products would be deemed an act of
of the patentee, i.e., it or he may not, product manufacturing, “new drinks in old bottle.”
for production or business purposes, However, if one recycles the used bottles with a
manufacture, offer to sell, sell or design patent then refills and sells its own drinks
import the design patent products. to take advantage of the beauty of the patented
bottles, it shall be deemed an act of producing new
Our Comments design patent product, but not exhaustion of patent
rights. The application of the patent right exhaustion
In general, the types of the act is limited to the circulation of patented products,
of manufacturing design patent while suitable objects are restricted to the patented
products include the following: products legally put on the market. See reference
design infringement case of Henan Weixue Beer
1. The physical act of production; Group Co., Ltd. V. Jiyuan Wangwushan Blackcurrant
Beverage Co., Ltd.
2. Commissioned production.
In this case, although production 5. The act of “supervision”, “trademark” and
is beyond the Defendant’s others. Marking the words “supervision” as well
business scope, commissioned as the defendant’s information (such as the name
manufacturing cannot be ruled or trademarks) on the product or the packaging
out. The Defendant’s trademarks will be deemed to have a legal effect that indicates
could be found from the product the accused products were produced by the
images, which indicated that defendant, and will generally be identified as an act
the third party was entrusted by of manufacturing. Of course, it is not sufficient to
the Defendant for production. firmly identify the defendant as the producer of the
Therefore, as the commissioning accused products only by the mark “supervision” or
party and the ordering party, the trademarks on the package of the products. See
the Defendant carried out an act reference case of (2018) YUE MIN ZHONG NO.2493.
of manufacturing the accused
infringing products. See reference China will further improve its punitive damages
case of (2018) YUE 73 MIN CHU system for intellectual property infringement. As
NO.2552. the source of infringement, the act of manufacturing
design patent products will be the key target for
3. The act of assembly. This combating design infringement by the people’s
refers to assembling individual courts and IP administrative law enforcement
design patent components into a agencies at all levels.■
complete design patent product.
For example, consider a design The article was written by Mr. Bingbing NING in Jiaquan IP law,
patent product titled “flashlight.” China. The firm provides award-winning services for the clients
If one purchases the casings of the at home and abroad to develop, acquire and enforce intellectual
flashlight from company A and the property rights in China. With over 230 intellectual property
inner parts from company B, then professionals, our expertise stretches across prosecution, litigation,
assembles those into the patented and invalidation of trademarks, patents and copyrights. Please
product to sells, such an action contact mail@jiaquanip.com for questions or visit www.jiaquanip.
would be defined as manufacturing com for more information.
South China Business Journal 4
