by Royal Hu
In the world of patent litigation, the details of patent texts are crucial - sometimes even a single word difference can determine the life or death of patent rights. A recent case from China’s patent litigation docket has sparked considerable discussion in the legal community, not only because of the technical nature of the dispute, but because of the remarkable procedural twist that followed.
This case, involving a waveform parameter setting method for AED (automated external defibrillators), revolved around whether the word “or” (或, huò) in a granted patent claim could be understood to mean “and” (和, hé). The dispute reached both administrative and judicial levels, producing contradictory outcomes and ending with a bold procedural move that may stretch the boundaries of China’s post-grant correction system.
The Core Dispute: Interpreting “Or” in Patent Claims
The patent in question belongs to Mindray, a major Chinese medical device manufacturer. Its claim stated that certain waveform parameters were configured “according to chest impedance monitoring data or defibrillation energy.”
A competitor challenged the validity of the patent, arguing that the use of “or” created a problem: the specification (description) only supported a scenario where both parameters were used together, that is, “A and B,” not “A or B.”
Under Chinese Patent Law, the scope of the claims must be supported by the specification. If the claim appears broader than what’s described, the patent risks invalidation.
First Outcome: Administrative Decision Favors the Patentee
In the initial patent invalidation proceeding, the CNIPA's Reexamination and Invalidation Department ruled in favor of the patentee. The panel took a functional and technical perspective, stating that a skilled person in the field would interpret “or” as meaning “and” in context. Therefore, the claim was deemed adequately supported by the specification, and the patent was maintained.
Second Outcome: Judicial Review Overturns the Ruling
The case then moved to the Beijing Intellectual Property Court through administrative litigation. In a significant reversal, the court found that “or” could not be interpreted as “and.” The claim, as written, was broader than the disclosure, and thus lacked sufficient support.
Moreover, the court also found that the patent lacked inventiveness. On this basis, the court overturned the administrative decision and invalidated the patent.
The Procedural Twist: A Late Attempt at Correction
After the unfavorable court decision, the patentee filed a Request for Correction with the CNIPA, seeking to change the claim wording from “or” to “and.”
This raised eyebrows across the IP community. The patent had been filed 20 years earlier (in 2005), litigated at multiple levels, and finally invalidated, yet the patentee attempted to revise the core claim language via a post-grant correction.
It remains unclear whether CNIPA will accept the correction. If it does, it may cast doubt on the finality of judicial decisions in patent validity cases. If it doesn’t, the attempt may be seen as a strategic maneuver too late to change the outcome.
Key Takeaways for International and Chinese Audiences
1. Claim Language Is Not Just Semantics
This case is a vivid reminder that every word in a patent claim carries legal weight. In many jurisdictions — including China — claim terms must match the scope and content of the supporting specification. If there’s ambiguity, courts will lean toward protecting legal certainty, especially when public reliance on claim language is at stake.
2. Chinese Courts Can Override CNIPA Interpretations
Although CNIPA panels may use a practical, technical approach in interpreting claims, Chinese courts, particularly specialized IP courts, may apply a stricter formalism, especially when evaluating the support and scope relationship. This dual-layered system can create unpredictable outcomes, which must be carefully considered in litigation strategy.
3. Post-Grant Correction Has Strategic (and Controversial) Uses
The use of the “correction request” (更正错误请求书, Gēngzhèng Cuòwù Qǐngqiú Shū) as a litigation rescue tool raises important questions:
Can this mechanism be used to rewrite a claim’s meaning after years of prosecution and litigation?
Where is the line between genuine correction and improper post hoc amendment?
Though the outcome of the correction request is pending, the attempt itself sets an important precedent, and may lead to greater scrutiny of how correction procedures are applied in China.
4. Litigation Strategy Must Anticipate Linguistic Risk
For patent drafters and litigators, this case highlights the importance of ensuring that every term, especially logical operators like “or” and “and”, is carefully considered, explained, and aligned with the rest of the patent documentation. A single word mismatch could render an otherwise enforceable patent invalid.
Conclusion
This “Qr versus And” case will likely become a touchstone in Chinese patent law for how linguistic precision, procedural tactics, and judicial interpretation intersect in high-stakes disputes.
For foreign and domestic right holders alike, it underscores the critical need to:
Draft claims with clarity and foresight;
Monitor litigation risks from semantic ambiguity;
Use post-grant tools judiciously, but be aware of their limits.
In China’s maturing IP environment, what may appear to be a trivial word choice can decide the life or death of a patent. As this case shows, one character can shape the course of twenty years of patent protection.