Patent owners in China can enforce their rights through two
routes: judicial (ie, Chinese courts) and administrative (ie, local
intellectual property offices). The current measures for the
administrative enforcement of patents came into effect on February
1, 2011. The State Intellectual Property Office revised these
measures and the new version of them took effect on July 1,
Local IP offices, which can be found in many cities all over
China, have the power to handle patent infringement disputes,
mediate disputes over patent rights, and handle patent passing off
cases. The measures provide detailed rules regarding the actions of
local IP offices in handling these matters.
An advantage of administrative enforcement of patents is the
high speed of the proceedings compared with legal proceedings in
courts. The revised measures include provisions providing further
improvements to terms of time limits.
Compared with the previous provisions, the revised measures
shorten the time limit for concluding a patent infringement
dispute. The time limit from instigating to concluding a case was
reduced from four to three months. Under exceptional circumstances,
extension of this time limit by up to one month is
permitted—this provision is maintained in the measures.
According to the revised measures, when a local IP office finds
or receives a report or complaint about suspected acts of passing a
patent off, it should instigate the case within five working days
from the date it finds the suspected acts, or within ten working
days from the date it receives the report or complaint, and it
should appoint two or more enforcement officers to make
The revised measures did not change the time limit for a local
IP office to conclude a patent passing off case, which is one month
from instigation of the case. Similarly, under exceptional
circumstances, the time limit can be extended by 15 days.
Considering these time limits are very short, it is understandable
that any further shortening is extremely difficult and may cause
other problems, such as a lack of thorough investigation,
deprivation of rights to be heard, and so on.
Where a relevant party requests a local IP office to mediate a
patent dispute, it should transmit the request for mediation to the
respondent and require it to file observations within 15 days. Once
the respondent files observations and agrees to resolve the dispute
through mediation, the local IP office should instigate the case
within five working days from receiving the observations. The time
limit for instigating a mediation case is newly added in the
In addition, the revised measures set a time limit for local IP
offices to disclose their decisions. Specifically, the measures
provide that where a local IP office finds patent infringement and
orders the infringer to stop the acts immediately, or where a local
IP office finds patent passing off and imposes punishment, it
should disclose its decision within 20 working days through
channels such as government websites.
The revised measures also include rules that prescribe that
local IP offices should swiftly mediate or handle patent
infringement disputes or handle acts of patent passing off related
to exhibitions or e-commerce platforms.
The revised measures further prescribe that when a local IP
office finds patent infringement and orders the infringer to stop
the acts immediately, it should order the exhibitors that infringe
the patent rights to withdraw exhibited products, destroy or
confiscate relevant promotion materials, replace or cover relevant
display boards, and so on.
When a local IP office finds patent infringement on an
e-commerce platform, it should instruct the provider of the
platform to take timely measures such as deleting, blocking or
breaking the links of the relevant web pages of the
patent-infringing products or products directly obtained by a
When a local IP office finds patent passing off by an exhibition
or on an e-commerce platform, it should correspondingly order the
exhibitors or the provider of the e-commerce platform to take
Stephen Yang is a partner at Peksung Intellectual Property.
He can be contacted at:email@example.com
This article first appeared in World Intellectual Property
Review, published by Newton Media Ltd. in July/August 2015
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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