China Patent Linkage News Flash (II) - The Supreme Court finalized the Patent Linkage Judicial Interpretations on 5 July 2021

The Patent Linkage Judicial Interpretations provide guidance on how the patent linkage court proceedings (“Patent Linkage Case”) will be implemented in China. The SPC has introduced a number of changes which were not contained in the previous draft Patent Linkage Judicial Interpretations issued in October 2020.

We set out below the key provisions in the Patent Linkage Judicial Interpretations.

1. Definitions

The Patent Linkage Judicial Interpretations contain the following definitions, providing clarity to Article 76 of the Patent Law:

• Patent linkage cause of action – a “dispute on the determination of whether the drug falls within the patent protection scope”.
• The court – Beijing IP Court (“BIPC”) has jurisdiction over Patent Linkage Cases (appeal should be filed with SPC);
• The patent in dispute – patent applicable for the Patent Linkage Implementing Measures, i.e. patents registered on the China Marketed Drug Patent Information Registration Platform (the “Patent Platform”);
• The interested parties – patent licensee and the drug marketing authorization holder (“MAH”);
• Confirmation action for generic drug applicant – the generic drug applicant may initiate an action to confirm that the drug does not fall within the patent scope. The confirmation action can only be initiated if the patentee or…