Nanjing Hencer Pharmaceutical Co., Ltd. (“the Client”) had publicly displayed pharmaceutical packaging boxes of Bayer Co., Ltd. (“Bayer”) through the internet and exhibition channels. Bayer considered that the Client’s act constituted patent infringement and therefore initiated patent administrative mediation with the Nanjing Intellectual Property Administration, which found that the Client’s act was a promissory sale and constituted infringement. The Client was unsatisfied with the result and filed a lawsuit, but lost the first instance. Later, the Client appealed to the Supreme People’s Court and instructed attorney Wenjun MIAO to provide legal services for it.

Business Difficulties and Highlights

As there is no clear provision in the Patent Law as to whether the promissory sale in the case fell under the Bolar exception, it was very difficult to prove that the Client’s conduct did not constitute an infringement. After accepting the instruction, attorney MIAO provided a comprehensive review over the provisions of the drug listing regulations and the Patent Law on the Bolar Exception. Combining the legislative spirit as set out in the Patent Law in Detail, attorney MIAO provided the Court with a comprehensive explanation that the acts of promissory sales in a particular field belonged to the Bolar Exception, based on which the Client’s acts did not fall under the Bolar Exception.

Attorney MIAO’s defence in this case provided an important reference for the application of Bolar Exception in promissory sales. This case was therefore named as a typical case of the Supreme People’s Court Intellectual Property Court in 2022.