Hubei Wushi Pharmaceuticals Group Co., Ltd. v. Aonuo (China) Pharmaceuticals Co., Ltd. and Wang Junshe

Kong Yanping applied for a patent on a drug for the prevention and treatment of calcium deficiencies. Before the patent was issued, China’s State Intellectual Property Office required two changes to improve the accuracy of the patent’s claims: “soluble calcium” was changed to “active calcium,” and “glutamate or glutamine” to “lysine hydrochloride.” This had the effect of narrowing the scope of the patent’s claims. The patent was licensed to Aonuo (China) Pharmaceuticals Co., Ltd. (Aonuo) (plaintiff). Aonuo brought a patent-infringement suit against Hubei Wushi Pharmaceuticals Group Co., Ltd. (Wushi) (defendant) and Wushi’s proprietor, Wang Junshe (defendant), over a drug sold by Wushi and Wang. Wushi and Wang argued that their drug infringed only the version of the patent that existed before the language was changed. The Shijiazhuang City Intermediate People’s Court commissioned a professional agency to carry out testing on the chemical components. The commission determined that “soluble calcium” and “active calcium” were functionally equivalent, as were “glutamate or glutamine” and “lysine hydrochloride”—a finding that was not technically correct. The court found Wushi and Wang liable for patent infringement. Wushi and Wang appealed to the Hebei Province Higher People’s Court, which affirmed. The case was finally appealed to the China Supreme People’s Court.