Producing or marketing of patented protected pesticide without license will usually incur both criminal and civil responsibilities if the patentee further resort to intellectual property rights, but illegal productions and marketings on the insecticide have unceasingly been seized and sentenced due to the high profit after the risk
DuPont’s Rynaxypyr has been patent-protected with its debut in China 4 years ago, unceasingly illegal productions and marketings of the insecticide have been probed and sentenced since then due to the high profit after the risk. This month, two patent infringements cases with 24 million Yuan worth of the counterfeits were sentenced in Jiangsu, a strong chemical outputting province in China.
June 4th, three people were jailed and ordered to pay for compensation by the verdict from Nangtong Intermediate Court for illegally production and marketing of Rynaxypyr. The prosecutor alleged that these people have illegally acquired the synthetic technology in 2008 and built a production line with the capacity of 20 tons per year. Investigation has found that production and marketing of the insecticide have been initiated from January 15th, 2010, and the accumulative value of the manufactured and sold of the insecticide was 6.37 million Yuan. The judge held that manufacturing and marketing of the insecticide have constituted criminal offense of “illegal business dealings” since all the activities by three defendants were conducted without any manufacturing permit or registration certification issued by China's competent authorities. Furthermore, as Rynaxypyr was patent protected in China, the patentee DuPont asked the court to pursue civil liabilities from the defendants, including ceasing their infringing activities and destructions of the unsold counterfeits, as well as a compensation of 4 million Yuan, the jury finally favored DuPont’s complaint but deducted the amount to 2.7 million Yuan.
Similarly on 20th, three men were sentenced to imprisonment ranging from 3 to 5 years by Binhai Court for illegal operating on the Rynaxypyr. Totally 14.67 tons of the insecticide which valued at 18.42 million Yuan has been manufactured, and 8 tons of the products had been sold to the terminal users. The jury found that illegal operating on the insecticide by three defendants has constituted serious disruption on China crop protection market and an additional penalty of 700 thousand Yuan was ruled.
China grants six years’ data protection period for a patented crop protection chemical, which means, except the patentee, no other entity would able to apply or be granted the corresponding pesticide registration certification or manufacturing license by the competent authorities. Therefore, most of the counterfeits were produced or sold without any permit and the operators will usually incur both criminal and civil responsibilities if the patentee further resort to civil liabilities.
However, whether or not, and to what extent could the intellectual property be protected under administrative approving level are still debatable. An official from Chinese pesticide registration issuing authority, the ICAMA, argued in an industrial conference that the ICAMA is responsible for evaluating the data submitted by the applicants and ensuring the effectiveness and safety of the pesticide products being placed on the market, rather than controlling the ongoing marketing activities at the administrative level in a technical way. He further suggested that a rebalance of the functions on the intellectual property management between the license-issuing authorities and other patent related authorities such as Patent Office and Court is more practical and exercisable. Thus ICAMA will less consider on the patent prospects of the registration applications submitted by the applicants, if the submissions were evaluated satisfying, the certifications will be granted to any applicants regardless of patent-concerned issues such as ranges, objects, expiring date, etc. Nevertheless, entities will still bear their costs in obtaining the protected data submitted to ICAMA and afterward responsibilities of marketing and operating of the patented products which might cause infringement lawsuits filed by the patentees.
Rynaxypyr is an anthranilic acid diamide derivative invented by DuPont and it has become the most best-selling insecticide and reached a global sale of $ 580 million last year for its high efficiency on the pests and low toxic on non-targeted organisms.
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