Background:
Between 1995 and 2000, BMA had supplied several OVC-type cooling crystallisers for dextrose monohydrate and fructose to China via STARCOSA, a subsidiary at that time. In some of the projects, BMA provided assembly supervision and assistance during commissioning, while in other projects, we only supplied drawings for one-off manufacture under licence by local Chinese companies. As was usual at the time, we collaborated with local design institutes in these projects.
We were very surprised to find that a utility model for an OVC-type cooling crystalliser had been registered at the Chinese Patent Register already in 2005 for the above company. Interestingly, the technical concept and substantial portions of the text describing the utility model were very similar to our own technical documentation. BMA’s property rights had expired, since the cooling crystalliser is fully developed and has been part of our product portfolio for more than 20 years. A large number of reference plants have been operating in the sugar and starch industry for a long time.
Formally, a registered utility model constitutes an injunctive right. If the Chinese utility model had remained unchallenged, BMA would have no longer been entitled to supply cooling crystallisers to China. A possible alternative would have been to pay royalties to the Chinese right holder, which was clearly unacceptable. We consequently applied to the Chinese Patent Office for nullification of the utility model, and were initially successful. However, the right holder decided to appeal against the decision of the Chinese Patent Office in an administrative action at the Beijing No. 1 Intermediate Court.
Much to our delight, the Beijing No. 1 Intermediate Court dismissed this action on 19 November 2012. This judgment shows that it is worth taking action against the infringement of one’s own rights by using any legal means.