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China IP Magaziine




◆ First Instance Docket: (2015) YueZhiFaZhuanMinChuZi No. 984

◆ Second Instance Docket: (2017) YueMinZhong No. 2294

CASE 5 :

Guangdong Province


In determining whether an accused subject matter constitutes literal infringement or infringement by equivalency of the patent claim,it must be taken into consideration of the actual technical problem the patent intends to solve, i.e. central idea of the invention, the ascertainment of which should not exceed the heart and soul of the invention to avoid conferring the patentee protection beyond its contribution. As to the technical features of “non-inventive point” in the claims, it should be broadly interpreted to ascertain its meaning, by referring to the central ideas in the specification for the true intentions, so as to avoid inadequate protection of the invention due to inappropriate narrowing of the interpretation.


Appellant (Plaintiff below): Trolli Guangzhou Confectionery Co., Ltd. of Mederer Group GmbH (Mederer)

Appellees (Defendants below): JinWang Food Co., Ltd. of Dongguan City (JinWang); TrustMark Department Store Co., Ltd. of Guangzhou City (Trust-Mark)

Mederer is the patentee of an invention patent No. Z L97198936.2 for “Candy Toy and Productive Method Thereof.” Alleging that the accused products manufactured by JinWang and sold by Trust-Mark have infringed its patent, Mederer filed suit in Guangzhou Intellectual Property Court, seeking injunction against JinWang and Trust-Mark, as well as compensatory damages in the amount of 1 million Yuan, plus 100 thousand Yuan for cost.

JinWang in defense contends that the patent covers flake types of only two component parts of foam sugar and pectin, whereas the accused product contains in every layer of the candy, apart from pectin, white sugar, glucose syrup, gelatin, etc., which falls outside the protective range of the patent, and therefore requests to dismiss the complaints.

The court of first instance found: claim 1 of Mederer patent, according to the patent specification, “it (the candy toy) consists of a plurality of substantially parallel substrates molded with foam sugar and pectin,” is expressed in closed drafting language, which is generally interpreted that it covers only the expressed components, and no more of other parts, or processes, or steps. The element in the accused product is neither identical with or equivalent to the “pectin” limitation. The court therefore dismissed Mederer’s complaints.

Dissatisfied with the first instance decision, Mederer appealed.

The court of second instance found: the accused product employs the technical feature of claim 1 of the patent regarding “pectin”; either the molding method in the patent, or the melting method of the accused product, are the heated treatment of pectin and gelatin, which are similar methods. Therefore, the accused product falls within the protective range of claim 1 of the patent. The court of second instance decides: the first instance decision is vacated; JinWang is liable for damages and costs in the amount of 300 thousand yuan; all other Mederer complaints are dismissed.

[Judge’s Comment]

I. Rule for interpreting inventive and non-inventive points of a patent claim.

In this case, the key issue of dispute between the parties is whether the accused product contains the identical element of “pectin” or an equivalent thereto as in claim 1 of the patent. To answer this question, it is necessary first of all to ascertain the meaning of the claim limitations, for which it shall be borne in mind of the technical problem sought to be solved by the patent, or the central idea of the invention, which shall not exceed the heart and soul so as to avoid conferring more to the patentee than his contribution. Correspondingly, in ascertaining the technical features of “noninventive point” of the claim, a more lenient method should be adopted in interpreting its meaning, by referring to the entire body of the specification to understand the true meaning of what the patentee intended to express, so as to avoid unnecessary narrowing which may cause failure of protection of the invention. It can be determined according to the specification, that claim 1 targets at reducing complexity of making candy toy without reducing its ability to be played with, which is the inventive point, and also the purpose of the accused product through structural design. Relatively speaking, the foam sugar and pectin are not the inventive point of the patent claim. 

II. The meaning of the claim may be ascertained by combining reference books, other public information such as textbooks, and common sense possessed by a person of ordinary skill in the art.

In interpreting the meaning of “pectin” as used in the patent claim, neither the claim itself, nor the specification, nor the drawing, gives clear definition of “pectin.” But another patent from the patent family did. According to the first issue of the 2009 Food Industry, an article, The Properties of Gelata and Jelly Sweets (3), stated that in making jujubes with pectin materials, it is necessary to add certain amount of sugar and acid. Based on this, a person of ordinary skill in the art, by referring to the patent specification and the drawings may ascertain that the “pectin” required in the claim means the jelly sweets having a flavor of fruits to which may be added such additives or substances as glucose syrup, white sugar, and buffer salt for controlling pH values. Although the accused product has various ingredients, it does not alter the physical properties and structure of fruits flavored jelly sweets, which coincide with the technical feature of pectin and foam sugar required for the substrate member in the patent claim. Thus, the accused product has the “pectin” element as in claim 1, where the composition of “pectin” is not clear, even the closed structure of claim language does not rule out the effect of gelatin. 

As to whether the substrates of the accused product are connected by way of molding or an equivalent method, according to an article in issue No. 3 of the 2009 Food Industry, The Properties of Gelata and Jelly Sweets (5), when making jelly sweets using gelatin, heat processing is needed. Thus either patented molding method or the melting method of the accused product involves heat processing of pectin and gelatin materials, therefore, an equivalent method.

This case clarified the interpretational rule to be applied for inventive and noninventive points of a patent claim for determination of whether an accused technical solution constituted an identical or equivalent features for the patent claim, thereby ensuring corresponding protection for the patentee’s technical contribution, and effective encouragement and protection for innovation.