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When is the patent war in the coal chemical industry?
Feb 26, 2018

One is a fortune 500 company, and one is a rising tech upstart.

One is located in yulin in northern shaanxi province, and one is located in nanyang, henan province.

Two seemingly disparate companies have been charged with a four-year lawsuit over a patent infringement case.


On December 25, 2017, the supreme people's court of henan XiXia dragon into a special material and shaanxi shenmu coal chemical industry group co., tianyuan chemical co., LTD., the intellectual property office of yulin city (hereinafter referred to as the bureau of yulin) patent administrative dispute decision: cancellation of shaanxi province higher people's court, xi 'an intermediate people's court of administrative judgment;

To resolve the decision on the handling of patent infringement disputes in yulin bureau;

Order the yulin bureau to make an administrative decision.


At this point, the case, which was caused by patent infringement, lasted four years, seven times before and after the court, and the court retried the case.


Technology breakthrough patent litigation in the early days of war.


In 2010, is located in the city of henan province nanyang XiXia company independent research and development of the megaton low rank coal low temperature pyrolysis equipment, to solve the low radiation heating in the decomposition process of coal, the process control key technical problems, such as cracked worldwide problem for many years, the coal industry caused a stir in the industry.

The company has laid out more than 200 patents, including more than 90 invention patents at home and abroad.


But at the end of 2013, they found that the "coal quality conversion equipment" used by tianyuan company was suspected to infringe the patent of "internal coal thermal coal material decomposition equipment".

In the case of other technical characteristics completely corresponding, tianyuan company "jacket" and "rotary kiln body" two technical characteristics, and of the patents involved in the "sealed kiln body" and "coal pipe material to promote decomposition" identical or equivalent.

The administrative mediation request was submitted to yulin, and the company was asked to stop the patent infringement.


On July 2 and July 29, 2015, yulin had two public oral hearings.

On September 1 of that year, yulin issued a decision: tianyuan company does not constitute infringement of the patent involved.

Xixia company is not satisfied, to the xi 'an intermediate people's court to bring administrative litigation.


The complicated and novel first instance case is a typical case in China.


On September 11, 2015, the xi 'an intermediate people's court heard the case.

During the trial, xixia company complained that the staff of yulin group was a law enforcement officer of the intellectual property office of baoji city, and could not participate in cross-jurisdiction.

At the same time, it insists that the two technical characteristics of tianyuan company are the same or equivalent to the "sealed kiln body" and "coal material promoting decomposition pipeline".


Bureau of yulin, argued that because of lack personnel strength, after check with the competent department, decided to "borrowing" baoji intellectual property office if a collegiate bench group and yulin bureau staff composition, and throughout the province deployment of patent administrative law enforcement, internal behavior belongs to administrative authority;

And that in the case of patent and two sets of the technical features of equipment is accused of infringement, solve problems, the technical scheme and technical effect is completely different, xian then maintains the yulin bureau of administrative mediation decision.


Due to the complicated case, it is difficult to confirm the scope of the claim.

Highly professional - determine whether the product is infringed;

The problems involved are novel -- the products involved are too large to be taken to the site. They involve technical secrets and can not be inspected at the site. They can only be used as the basis for judging the products.

High social awareness, each session shaanxi intellectual property system almost all law enforcement involved in auditing, as a new type of patent administrative case of first instance case, is on "intellectual property rights in China" magazine "2015 annual national court typical case of intellectual property rights".


As a result of the first instance, xixia company is still dissatisfied with the appeal to the high people's court of shaanxi province.

The shaanxi high court made an administrative decision on June 6, 2016, and rejected the appeal to maintain the original judgment.


The highest law is the right and the wrong.


Keep losing.

On December 2, 2016, xixia company filed a retrial with the supreme people's court.


On September 21, 2017, the court questioned the case, XiXia company put forward a new doubt: in the yulin in the trial of the second, collegiate bench group for the first time to participate in mouth on certain changes as Feng Mou, but is still in the administrative decision shall be the one, is not in conformity with the administrative law enforcement procedures, at the same time insist tianyuan company infringed on its patents.


Think the court retrial, yulin bureau in the mouth in the process of trial, collegiate bench group ai was converted into Feng Mou, but their names on a administrative decision, equal to "hearing is not ruling in judgment is not", a big and clear violation of legal procedures.


Secondly, the superior department's reply about scheduling in case law enforcement officers "on November 20, 2015, later than of the make of the administrative decision time, if not as a legal participation of the premise and condition of the administrative decision.


Also pointed out that yulin bureau to the patent involved "sealed kiln body" and "coal material pipe" promote the decomposition of interpretation, the function of the characteristics of two groups of disputed focus technology, errors in effect.

The decision to be sued for patent administrative decision violates the legal procedure and applies the legal error;

The judgment of the second instance is also wrong with regard to the procedure and entity of the dispute in this case, and shall be revoked in accordance with the law.

The supreme people's court decided yulin to make administrative decisions on the patent infringement case according to law.


Protecting and innovating patent rights is a long and arduous task.


"The case appears to have ended, and we seem to be back at the beginning.

No matter what the yulin bureau does again, as long as one party refuses to accept, the next marathon will fall."

"If the fundamental problem of patent infringement is not solved, the innovation of the enterprise may still be wasted," zhu shucheng, chairman of xixia, said.


Zhu said that in order to develop the project, thousands of people in xixia company have spent years, thousands of laboratories, industrial experiments and transformation, and invested more than 4 billion yuan.

Now because of the patent infringement dispute, the company's interests suffered huge losses.


The case has attracted widespread attention and debate in the industry.

Liu huaizhang, director of the intellectual property office of henan province, said that the company has laid out more than 200 patents for a technology that could not be eliminated.

What is the reason for this?

How can we care for the valuable patent consciousness of the enterprise?


Research association, vice President of Chinese intellectual property law, China university of political science and law professor xiao-qing feng said that the case is patent administrative dispute, reflects the patent administrative case procedure and entity equal importance of the problem.

The patent dispute settlement time is longer, the administrative litigation cannot finally solve the infringement dispute between the parties involved, and the cost of the subsequent litigation will be further increased.

Whether a more appropriate package of solutions can be adopted is worth considering.


Professor zhang chu, executive director of the intellectual property law society of the Chinese law society, said that the number of cases in which small companies file lawsuits against large companies is increasing and must be faced.


Deputy director of the intellectual property research and training center, Chinese academy of sciences Song He researcher thinks, because the court cannot directly determine the validity of the patent right, often leads to a patent infringement lawsuit and invalid request, cycle, time consuming.

China has already implemented the patent rapid application and authorization mechanism, also urgently needs to implement the patent rapid protection mechanism.