Wanhuida represented Bayer in two administrative cases before Shanghai and Beijing Intellectual Property Offices against local infringers engaged in displaying patented product on the official website and large-scale exhibition.

The Shanghai case is selected as one of the National Ten Exemplary Patent Administrative Enforcement Cases of 2019 by the National Intellectual Property Administration, while the Beijing case is among the Ten Exemplary Intellectual Property Administrative Enforcement Cases of 2019 issued by the Beijing IP Office.

The two pharmaceutical patents owned by Bayer claim the anti-tumor compound sorafenib and the anticoagulant compound rivaroxaban respectively.

In the Shanghai case, the Shanghai IP office held that infringer’s listing patented product on the official website, brochures or exhibition boards is a proof of offering to sell. In addition, the disclaimer therein cannot exempt the infringer from the liability of promoting the patented product, that is, offering to sell. The Shanghai IP office further found that the offering to sell is targeting non-specific potential customers who are not covered by research exemption and Bolar exemption. As all the trade fairs related to pharmaceutical and agrochemical APIs are held in Shanghai, a case issued by the Shanghai IP office will play an important guiding role to enforce patents in future trade fairs as well as to protect patentee’s markets in China and worldwide.

In the Beijing case, during fact-finding process the infringer admitted it has offered to sell and sold infringing product. In view of this, the Beijing IP Office mediated a settlement between the two parties. The infringer guaranteed to stop infringement, and made a compensation. The flexible and rapid settlement of this case protects the legitimate rights and interests of the right holder.

Contributed by: Xiaohui Wu