Pharma and Biotech Patent Litigation

The Chinese People’s Court shifts the burden of proof to the defendant in a known-compound preparing process patent infringement case By Dr. Stephen ZOU*

Due to lack of discovery procedure, in China, it is very difficult for the patentee to enforce a process patent, especially a process patent for a known product. In Ashland Licensing and Intellectual Property LLC v. Beijing Ruishibang Fine Chemistry Technology Co., Ltd. and Wei Xingguang, the Suzhou Intermediate People’s Court (hereinafter “the Court”) found that the defendant’s production of that certain chemical constituted infringement based on a shift burden of proof, even if the patent at issue relates to a process for manufacturing a known product. The patent at issue relates to a process of manufacturing a known polymer-dispersion. The product is only supplied to a specific customer group and is impossible to be obtained from the open market. The first defendant Beijing Ruishibang Fine Chemistry Technology Co., Ltd. manufactured and sold the same product as that manufactured by the patented process. Another defendant, Wei Xingguang, a member of the management staff of the first defendant, used to work for the plaintiff and had access to the patentee process. The plaintiff failed to collect the evidences regarding the manufacturing process of the defendant after trying different means, including evidence preservation. In this case, it is highly possible that the defendant uses the patented process as its management staff had access to the patented process as the plaintiff’s former employee. Although the plaintiff had tried its best to collect evidences, it is almost impossible for the plaintiff to prove the establishment of infringement due to un-access to the infringing product and the manufacture process of the defendant. Under such circumstance, the court shifted the burden of proof to the defendant and asked the defendant to provide evidence to indicate that the process they used is different to the patented one. But the defendant refused. The Court held that infringement was established. * Dr. Stephen ZOU is a partner and patent attorney at Lung Tin International Intellectual Property Agent Ltd.. His email address is [email protected].  

ZOU, Zongliang (Stephen)ZOU, Zongliang (Stephen), Ph.D, LL.M Patent attorney

  Experience: Dr. Zou is a partner and a patent attorney at Lung Lin, where he focuses on patent matters, primarily on patent application preparation and prosecution in the fields of pharmacy, chemistry, and biotechnologies, as well as on patent reexamination, invalidation and litigation. In particular, Dr. Zou has rich experience in providing clients with patent infringement analysis. Dr. Zou joined Lung Tin in 2012.   Since Dr. Zou started his professional as a patent attorney from March 2003, he has been entrusted by several multinational pharmaceutical giants to handle their patent matters in China, helped them obtain regulatory approval, and helped them solve IP matters in drug pricing & drug bidding activity.   Prior to joining Lung Tin, Dr. Zou had served in a well-known IP firm as a patent attorney and a partner for over nine years.   Before his legal profession, he had been an assistant professor at China Academy of Military Medical Science from 2000 to 2002.   Education: Dr. Zou obtained his Ph.D. in pharmaceutical chemistry at China Academy of Military Medical Science in China (2000), and Master of Laws in Intellectual Property Law from John Marshall Law School in US (2010). Dr. Zou’s working languages are English and Chinese.   Contact Information: Email: [email protected] Cell Phone: 86-139 1012 6372 Telephone: 8610-84891188 ext. 602  

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Pharma & Biotech Patent Litigation