King & Wood Mallesons

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Insights on drafting pharmaceutical patents from the Supreme People’s Court’s Annual Report of Intellectual Property Cases

By Cecilia Lou, Yao Di and Shirley Sun

In April 2013, the Supreme People’s Court (SPC) issued the Annual Report of Intellectual Property Cases (Annual Report), which included 34 typical intellectual property and competition cases from 2012 and summed up 37 legal issues with universal significance. To assist pharmaceutical enterprises in drafting patent applications we have summarised the pharmaceutical patent cases in the Annual Report.

The Supreme Court held that: ‘[c]lose-ended claims should be generally construed as compromising indicated compositions only and exclude other ingredients, though impurities are allowed within normal amounts. However, excipients are not impurities. If the patentee chose a close-ended claim, he clearly considered that any unmentioned component is out of the protection scope of the patent right. Moreover, in this situation the doctrine of equivalents of judging different technical features should no longer be applied.’

The patent named ‘Adenosine triphosphate disodium and magnesium chloride frozen powder injection and its manufacturing method with an application no. 200410024515.1. There was a close-ended claim 2, which sought protection of a freeze-dried powder injection, comprising adenosine triphosphate disodium and magnesium chloride, with a weight ratio of 100mg to 32mg…

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