In two cases involving selling or promising to sell products infringing utility model patents at exhibitions, the Intellectual Property Court of the Supreme People's Court gave guidance for reference on the identification of patent infringing subjects.

In said two cases, the parties of one case actively adduced evidence and did not bear legal responsibility; in the other case, the parties did not provide evidence on the facts they claimed, and when they could not distinguish the behaviors of the exhibitors, they were identified as joint infringers and sentenced to bear corresponding legal responsibilities. 

The case revealed that under the circumstance where the parties do not disclose or prove the real infringer in the litigation process, and in combination with other objective facts, the relevant responsible persons shall bear the corresponding adverse consequences.

Jinhua Shixin Leisure Products Co., Ltd. (hereinafter referred to as Shixin Company) is the owner of a utility model patent with patent number 201420522206.6 and name of "Handlebar Folding Mechanism", which is applied to scooters. In November, 2019, at the 12th North China (Pingxiang) International Bicycle and Baby Carriage Toy Fair, the patentee notarized and obtained evidence on the sales and promised sales of scooter products suspected of infringement, and then filed two lawsuits. 

In No.1838 IP civil lawsuit (2020) hearing by supreme court, exhibitor Guangzong Yuecheng Children's Toy Factory (hereinafter referred to as Yuecheng Toy Factory) failed to produce justifiable reasons for its non-attendance to court and did not provide rebuttal evidence. According to the information attached to the involved infringing product, combined with the contents recorded in the notarized business card and the business scope of Yuecheng Toy Factory, the court of second instance determined that Yuecheng Toy Factory was the infringing subject of a series of infringement acts including manufacturing, sales and promised sales, and should bear corresponding civil liabilities. 

The exhibitor of the same booth, Shubei Children's Toy Factory of Pingxiang County (hereinafter referred to as Shubei Toy Factory), actively appeared in court to respond to lawsuits and actively gave the evidence, such as lease agreement, WeChat record and transfer voucher. After examination, the aforementioned evidence can prove that there is a booth lease relationship between Shubei Toy Factory and Yuecheng Toy Factory, and it does not have the subjective intention of joint infringement with Yuecheng Toy Factory, considering that it is difficult to judge whether the sued infringing product constitutes patent infringement, and the heavy examination obligation. Therefore, it is determined that the documented evidence is not sufficient to determine that Shubei Toy Factory has intentional or obvious liability for fault in helping Yuecheng Toy Factory to carry out infringement. Shubei Toy Factory does not constitute a joint infringement of sales and promised sales and should not bear corresponding civil liability.

In No.1806 IP civil lawsuit (2020), although the two exhibitors Xingtai Shuotong Children's Toys Co., Ltd. (hereinafter referred to as Shuotong Company) and Pingxiang Youtai Baby Car Factory (hereinafter referred to as Youtai Baby Car Factory) claimed that they rented the booth together with the third person outside the case, and it is this third person outside the case who actually sells or promises to sell the sued infringing products, while they were not involved in manufacturing the products. However, the court of second instance held that the evidence provided by the two exhibitors did not disclose the real situation of the third party, nor was there sufficient evidence to prove the claimed facts, which failed to support the defense of not engaging in sales and promising sales. Since Shuotong Company and Youtai Baby Car Factory did not prove the legal source of the alleged infringing products, it was determined that the alleged infringing products were manufactured by Shuotong Company and Youtai Baby Car Factory, and Shuotong Company and Youtai Baby Car Factory should bear joint liability for their infringement.