Patents—China—Q&A guide
Patents—China—Q&A guide

The following IP practice note provides comprehensive and up to date legal information covering:

  • Patents—China—Q&A guide
  • 1. What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?
  • 2. What is the format of a patent infringement trial?
  • 3. What are the burdens of proof for establishing infringement, invalidity and unenforceability of a patent?
  • 4. Who may sue for patent infringement? Under what conditions can an accused infringer bring a lawsuit to obtain a judicial ruling or declaration on the accusation?
  • 5. To what extent can someone be liable for inducing or contributing to patent infringement? Can multiple parties be jointly liable for infringement if each practises only some of the elements of a patent claim, but together they practise all the elements?
  • 6. Can multiple parties be joined as defendants in the same lawsuit? If so, what are the requirements? Must all of the defendants be accused of infringing all of the same patents?
  • 7. To what extent can activities that take place outside the jurisdiction support a charge of patent infringement?
  • 8. To what extent can ‘equivalents’ of the claimed subject matter be shown to infringe?
  • 9. What mechanisms are available for obtaining evidence from an opponent, from third parties or from outside the country for proving infringement, damages or invalidity?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to patents in China published as part of the Lexology Getting the Deal Through series by Law Business Research (published: February 2021).

Authors: Baker McKenzie—Liu Honghuan; Zhou Xi

1. What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?

A patentee can enforce patent rights against an infringer by filing a patent infringement lawsuit with the civil court or file a patent law violation accusation to the local offices of the China National Intellectual Property Administration (CNIPA). CNIPA offices will decide whether there is an infringement, and if an infringement is found, the local CNIPA office can ask the infringer to stop the infringement, but it has no jurisdiction over damages for patent infringement.

There are specialised IP courts in Beijing, Shanghai and Guangzhou, in which a patent infringement lawsuit in each of these three jurisdictions must be brought to the corresponding IP court. There are also some specialised panels within local intermediate courts in which a patent infringement lawsuit must be brought. Where there is such a specialised court or panel, patent litigation within their jurisdictions (assigned by the Supreme Court) must be brought to these specialised courts or panels. Where there is no specialised court, the patent infringement lawsuit

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