Article 47 of the Patent Law regulates:
Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.
The decision declaring the patent right invalid shall have no retroactive effect on any judgment or conciliation statement on patent infringement made and executed by the people's court, any decision on the settlement of a patent infringement dispute which has been performed or forcibly executed, or any contract on patent licensing or assignment contract which has been performed before the declaration of the patent right invalid. However, any loss caused to others by the patentee in bad faith shall be compensated.
Where, in accordance with the provisions of the preceding paragraph, the compensation for patent infringement, the patent fee or the patent right assignment fee is not refunded, which clearly violates the principle of fairness, the compensation shall be refunded in whole or in part.
The rule emphasizes that the decision to declare a patent invalid has limited retroactive force, and its purpose is to reduce the litigation burden of both parties and law enforcement agencies. However, this clause does not clearly explain which cases are retroactive and which cases are not. Next, we will interpret the provisions of this clause in detail through existing precedents.
The judgment of CAI Shaoxing v. Liu Jianjin's application for retrial in the dispute over patent infringement of utility model, which was selected as "top 10 Cases and 50 Typical Cases of Judicial Protection of Intellectual Property in China in 2010", namely civil Ruling No. 184 of The Supreme People's Court (2010), read some concepts of this Law, for example, it is stated in the judgment that "the patent right declared invalid" refers to the patent right declared invalid by the decision of the Patent Re-examination Board on the request for invalidation whose validity is finally determined.
"Before the invalidation of the patent Right" means the date before which the Patent Re-examination Board makes the invalidation decision of the patent right, excluding the date on which the decision is made. "The executed judgment or ruling on patent infringement" means that all the legal liabilities that the accused infringer should bear as determined by the patent infringement judgment or ruling have been fulfilled, that is, all the patent infringement compensation has been actually received by the applicant for enforcement. The interpretation of this judgment is basically consistent with the interpretation of most judgments based on this law, and this case has become a precedent classic in the industry, which can be used as a reference.
In addition, in the retrial of the dispute over the infringement of the patent right of utility model between Wuyishengte Automobile Industry Co., Ltd. and Yongkang Zhangyuan Industry and Trade Co., LTD., the civil judgment also made the following judgment:In this case, the Patent Reexamination Board made decision No. 35002 to invalidate the patent right involved in the case, which has taken legal effect. The patent right involved in the case should be regarded as non-existent from the beginning, and the original judgment of this case has not been executed yet, so the invalidation decision has retroactive effect on the first and second judgment of this case.Thus it can be seen that the interpretation of "executed patent infringement judgment and ruling" in the industry tends to be basically consistent.In addition, the second instance civil judgment of the dispute over unjust enrichment between Huadian Laizhou Power Generation Co., LTD and Shenzhen Bozhong Energy Saving Engineering Technology Co., LTD also interpreted Article 47 of the Patent Law, the judgement indicated that the judgment and conciliation statement mentioned in the paragraph shall be a judgment document with legal effect.
Based on the above cases, the interpretation of this law tends to be clear.
