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With the implementation of the Fourteenth Five-Year National Intellectual Property Protection and Utilisation Plan, China’s invention patent authorisations have ranked first worldwide for four consecutive years, reflecting the country’s significant achievements in patent protection. However, data from the Supreme People’s Court shows that the proportion of patent infringement cases involving complex technological features has risen markedly in courts nationwide in recent years, with many cases failing due to insufficient evidence.
Clearly, in the context of rapid technological development, patent enforcement faces severe challenges, particularly for patents with complex technical features that are highly specialised and numerous, making evidence gathering and use extremely difficult.
Business challenges
Take, for example, a well-known Taiwanese smart cleaning robot technology company. Its window-cleaning robot, backed by unique patented technology, has held a market-leading position. However, in recent years, the market has seen an influx of similar products priced far below the genuine article, significantly impacting the company’s market share. In this context, the company has commissioned the author to handle its intellectual property enforcement matters in mainland China.
The enforcement process faces several challenges. First, establishing infringement is difficult, as infringers use subtle technical adjustments and decentralised supply chains to avoid direct infringement. Second, collecting evidence is challenging due to the dispersed and covert nature of the infringers’ production and sales channels, making tracing and verification resource-intensive.
Third, proving the amount of damages during litigation is problematic, as it is difficult to establish the infringer’s profit from the infringement, which may lead courts to apply statutory compensation and award low damages. Finally, technical assessment is complex because the patented technology comprises numerous intricate features, requiring considerable specialised expertise to determine infringement.
These challenges risk trapping companies in a vicious cycle of high enforcement costs and low infringement penalties, underscoring the urgent need for a systematic approach to intellectual property enforcement.
Evidence breakthrough strategy
Commission professional resources for evidence collection. When rights holders face difficulties collecting evidence on their own, they may enlist the assistance of professional institutions such as investigative companies or legal teams. Lawyers possess the necessary legal knowledge and litigation experience to grasp legal issues, understand the evidence requirements, precisely analyse infringement conduct, and determine the focus and direction of evidence collection.
Preserve evidence through notarial agencies. Acting as a consumer, the author purchased the product in question from either the infringer’s online flagship store or an offline distributor. A notary recorded the entire purchase process and product details, thereby creating a complete evidence chain that ensures the evidence is both legally compliant and authentic.
Report and collect evidence through administrative channels. On identifying the source factory, the author initially gathered evidence and then submitted a request to the local Market Supervision Administration for action. With administrative intervention, authorities inspected the factory, seized products and equipment, collected infringement evidence, and took measures to halt and penalise the infringement.
Adopt specific measures to tackle online infringement. The author sent a lawyer’s letter to the e-commerce platform, urging immediate action to stop the infringement, such as delisting the products and providing seller details. An application was also made to the court for access to sales records – including sales volume and revenue – to establish the extent of the infringement.
Utilise professional evaluation agencies. When products involve complex technical features and preliminary comparisons make it difficult to confirm infringement, or when there is a dispute over infringing activities, the author engages professional evaluation agencies to analyse and compare the patented technology with the infringing product. These agencies then issue an authoritative report to further clarify the infringement facts.
Priority rights protection path
Online infringement is addressed first. In cases of online infringement, the author issued lawyer’s letters to platforms and merchants, demanding the removal of infringing links. This approach quickly curtails infringement at low cost and is the preferred method for rights protection.
A complaint is then filed with the Market Supervision Administration. After obtaining evidence of infringement from a particular factory, the author submitted a processing request along with preliminary evidence to the local Market Supervision Administration.
On investigation and verification, the administration organised mediation and imposed penalties on the infringing party, effectively curbing further infringement and securing substantial compensation for the rights holder. Moreover, once the mediation agreement is judicially confirmed and becomes enforceable, the rights holder may apply to the court for compulsory enforcement if the infringer fails to comply.
Litigation is also used for rights protection. Although litigation is characterised by more complex procedures, longer duration and higher costs, it provides enterprises with stronger legal protection and ensures that their legitimate rights are fully maintained.
In the window-cleaning robot patent infringement case, the author employed the above-mentioned evidence collection and rights protection measures not only to safeguard the patent holder’s rights and secure high compensation, but also to regulate market order and encourage technological innovation. In the era of intelligent manufacturing, protecting complex technical patents now transcends traditional legal services, requiring lawyers with technical acumen, legal expertise and business insight to build a comprehensive service system that creates a solid moat for enterprises in the intellectual property battle.
Lv Yinping
Senior Partner
Kangda Law Firm
Tel: +86 136 9323 0666
E-mail:
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