In China, a patent infringement is triggered when a party exploits a patent without authorization for commercial purposes. This makes "purpose of commerce" a key element in determining patent infringement. If a manufacturer exploits a patent without authorization but donates, without monetary consideration, the finished products in which the patent subsists e.g. for charity, would the donation fall outside the scope of "purpose of commerce" and be a legitimate defense against a patent infringement claim?
We believe not. When examining the "purpose of commerce" element, the core consideration is whether the conduct unreasonably conflicts with a normal exploitation of the patent and unreasonably prejudices the legitimate interests of the patent owner. Specifically, factors including the nature of the party intending to implement the patent, the scope of the conduct, the potential impact of such conduct on a patent holder's existing and potential market and potential benefits to the implementer should be considered. Donation does satisfy the requirement of "purpose of commerce". We explain this below from the aspects of legislation and judicial practice.