Summary
Under Chinese law, invalidity is not an available defense to a
claim of patent infringement. However, the Supreme People's
Court (SPC) in a recent decision Zudian Intelligent Technology Co.,
Ltd. v. Simsukian Electronic Technology Co., Ltd. (2022) for the
first time ever permitted invalidity defense to dismiss a
plaintiff's complaint after the defendant has
established：
(1) there is a “substantial likelihood” that the
asserted claims are invalid; and
(2) a dismissal would not unduly prejudice the plaintiff given
the defendant's promise to compensate the plaintiff's
loss if the China National Intellectual Property Administration
(CNIPA) were to subsequently find the asserted claims to be
valid.
