Marquette Intellectual Property and Innovation Law Journal
The standard of a Reasonable Person is the common basis for determining the duty of care of a patent infringer. Under the Chinese patent law, the standards for Reasonable Manufacturer and Reasonable Importer are among the highest standards in the world; such high Chinese standards impose an excessive duty of care for Chinese manufacturing enterprises, importers, and distributors, which hinder the development of those enterprises. We should reconstruct the Chinese patent law's Reasonable Person standard based on the characteristics of the patent system and the status quo of China's economic production. A Reasonable Manufacturer should be defined as an ordinary technician with medium-level technology reserves in the relevant field, who has a medium-level ability for patent document search and retrieval, who knows the technological composition of his product, and who is able to evaluate and decide on obvious infringement acts. The reconstructed Reasonable Manufacturer standard is based on the attention and ability of ordinary manufacturers at the current stage of socioeconomic development in China, which is similar to the standards adopted in the United States, Japan, and Europe.
Weihong Yao & Robert H. Hu, Reconstruction of the Reasonable Person Standard under Chinese Patent Law, 26 Marq. Intell. Prop. & Innovation L. Rev. 11 (2022).