China’s first drug patent linkage litigation：A foreign pharmaceutical company Vs. Wenzhou Haihe Pharmaceutical Co., Ltd
A foreign pharmaceutical company brought a drug patent linkage lawsuit against Wenzhou Haihe Company’s “Idecalcitol Soft Capsules” before the Beijing Intellectual Property Court in accordance with the first paragraph of Article 76 of the Patent Law. The court of first instance ruled to reject the Plaintiff’s claim, and the Plaintiff filed an appeal. In the second instance, the Supreme People’s Court held that the assessment on whether the technical solution of the generic drug falls within the protection scope of the patent claims should, in principle, be made based on the application materials of the generic drug. Therefore, it was decided to dismiss the appeal and uphold the first instance judgment.
This case is China’s first drug patent linkage litigation case. In China, there is no drug patent linkage system available, which brought huge difficulties in determining the rules which should be applied to the case. During this case, Fairsky did a huge volume of work in searching the practices in the industry and exploring the original intention of the legislation. This case obtained widespread attention from both home and abroad. Additionally, this case was listed as one of the“2022 Typical IP Cases” by the Supreme Court, as well as the “Top Ten Nominated Cases of 2022 to Promote the Rule of Law in the New Era”.