Beijing Double-crane Pharmaceutical Co., Ltd. v. Xiangbei Welman Pharmaceutical Co., Ltd. and Patent Re-examination Board of the State Intellectual Property Office
The Supreme People’s Court
China 2011
- Written by Rich Walter, JD
Facts
Xiangbei Welman Pharmaceutical Company, Ltd. (Xiangbei Welman) (plaintiff) patented a new antibiotic compound. Xiangbei Welman claimed that what distinguished the compound from prior art was the testing protocol Xiangbei Welman devised for ensuring the compound’s safety. However, Xiangbei Welman did not disclose details of that protocol in its patent application, believing that disclosure (1) would give away Xiangbei Welman’s intellectual property in the protocol and (2) was unnecessary because the need to obtain regulatory approval for any new antibiotic was sufficient to assure the public that the antibiotic was tested and deemed safe. At the instigation of Beijing Resources Double-crane Pharmaceutical Company, Ltd. (Double-crane) (defendant), the Patent Re-examination Board of the State Intellectual Property Office (board) (defendant) revoked Xiangbei Welman’s patent. The board reasoned that Xiangbei Welman’s bare-bones patent application lacked any evidence that Xiangbei Welman’s antibiotic possessed the patent prerequisite of inventiveness. Xiangbei Welman sued Double-crane and the board. After two lower courts upheld the patent’s revocation, Xiangbei Welman appealed to the Chinese Supreme People’s Court.
Rule of Law
Issue
Holding and Reasoning ()
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