China: Patent Litigation

This country-specific Q&A provides an overview to Patent Litigation laws and regulations that may occur in China.

  1. What is the forum for the conduct of patent litigation?

  2. What is the typical timeline and form of first instance patent litigation proceedings?

  3. Can interim and final decisions in patent cases be appealed?

  4. Which acts constitute direct patent infringement?

  5. Do the concepts of indirect patent infringement or contributory infringement exist? If, so what are the elements of such forms of infringement?

  6. How is the scope of protection of patent claims construed?

  7. What are the key defences to patent infringement?

  8. What are the key grounds of patent invalidity?

  9. How is prior art considered in the context of an invalidity action?

  10. Can a patentee seek to amend a patent that is in the midst of patent litigation?

  11. Is some form of patent term extension available?

  12. How are technical matters considered in patent litigation proceedings?

  13. Is some form of discovery/disclosure and/or court-mandated evidence seizure/protection (e.g. saisie-contrefaçon) available, either before the commencement of or during patent litigation proceedings?

  14. Are there procedures available which would assist a patentee to determine infringement of a process patent?

  15. Is there a system of post-grant opposition proceedings? If so, how does this system interact with the patent litigation system?

  16. To what extent are decisions from other fora/jurisdictions relevant or influential, and if so, are there any particularly influential fora/jurisdictions?

  17. How does a court determine whether it has jurisdiction to hear a patent action?

  18. What are the options for alternative dispute resolution (ADR) in patent cases? Are they commonly used? Are there any mandatory ADR provisions in patent cases?

  19. What are the key procedural steps that must be satisfied before a patent action can be commenced? Are there any limitation periods for commencing an action?

  20. Which parties have standing to bring a patent infringement action? Under which circumstances will a patent licensee have standing to bring an action?

  21. Who has standing to bring an invalidity action against a patent? Is any particular connection to the patentee or patent required?

  22. Are interim injunctions available in patent litigation proceedings?

  23. What final remedies, both monetary and non-monetary, are available for patent infringement? Of these, which are most commonly sought and which are typically ordered?

  24. On what basis are damages for patent infringement calculated? Is it possible to obtain additional or exemplary damages?

  25. How readily are final injunctions granted in patent litigation proceedings?

  26. Are there provisions for obtaining declaratory relief, and if so, what are the legal and procedural requirements for obtaining such relief?

  27. What are the costs typically incurred by each party to patent litigation proceedings at first instance? What are the typical costs of an appeal at each appellate level?

  28. Can the successful party to a patent litigation action recover its costs?

  29. What are the biggest patent litigation growth areas in your jurisdiction in terms of industry sector?

  30. What do you predict will be the most contentious patent litigation issues in your jurisdiction over the next twelve months?

  31. Which aspects of patent litigation, either substantive or procedural, are most in need of reform in your jurisdiction?

  32. What are the biggest challenges and opportunities confronting the international patent system?