China: Q & A On Patent Litigation In China (Part II - Procedure And Argument)

1. What is the process of a typical civil infringement litigation case?

* For cases where at least one of the following occurs: a party is a foreign entity, or any subject of the action or factum juridicum existed outside of China - the time limit is extended to 30 days.

2. What is the process of a typical first instance court session?

3. How long does it usually take for a typical patent infringement case in the first instance?

Generally speaking, the first instance takes no longer than six months, but foreign cases (i.e. at least one party is a foreign entity) are not subject to this limitation. On average, a patent infringement case in the first instance will be closed within six to twelve months.

The Supreme People's Court published "Some Rules Set Forth by the Supreme People's Court for Strictly Abiding by the Time Limits for Case Hearing and Execution", containing common time periods in civil cases that will not count towards the time limits for case hearing or for execution:

  • Period within one month after the court decides to delay the case hearing because the parties to the case, their agents, or defense counsels have applied for the presence of an additional witness/es, the provision of new evidence, or additional expert evaluations or inspections;
  • In a civil or administrative case, period during which a public announcement or evaluation is being made;
  • Period during which opposition to court jurisdiction raised by the parties to the case or by another court is being heard; and
  • In a civil or administrative case or in an execution procedure, the period during which an audit, assessment or liquidation is being made by relevant professional agencies.

4. Do you have any IP case statistics?

In 2014, the first instance civil cases closing rate (no appeal) was 85%. 66% of all the first instance civil cases were closed either by settlement or by withdrawal. The appeal rate for first instance civil decisions was 78%. The following are some of the IP case statistics collected by the Supreme People's Court from 2008 to 2014.

5. Why has the number of IP litigation cases increased so significantly in the past ten years?

Contributing factors may be: an increasing awareness of intellectual property protection; an increasingly effective judicial system, whereby rule of law has become more entrenched compared to other areas; and the government's encouragement to settle disputes by legal approaches. Here, legal approaches are not limited to litigation, and may also include mediation and arbitration.

Moreover, there were 2.36 million patent applications admitted to the SIPO in 2014, with China being number one in terms of application volume of trademarks for over ten years. There are significant numbers of IP rights granted in China, and the right holders are beginning to enforce their rights. IP litigation and IP licensing have followed as a corollary of this. Also, such an increase in IP litigation is an indication that judicial process yields effective remedies for IP-related disputes.

6. How many IP cases did the Chinese courts handle in 2014?

In 2014, the Chinese courts received a total of 95,522 first instance civil cases, 9,918 first instance administrative litigations, and 11,088 first instance criminal cases relating to IPRs. Here is a bar graph for the breakdown of civil cases.

7. The number of patent litigation cases is very high. Are they mostly Invention Patent related cases?

No. In China, there are three forms of patent protections: Invention Patents, Utility Model Patents and Design Patents. According to the China Patent Infringement Litigation Status Research Report (covering 1985-2013), about 50% of the patent litigation cases were Design Patent cases, around 30% were Utility Model Patents and only 20% were Invention Patents.

8. How many IP cases did the courts in Beijing handle in 2014?

In 2014, the courts in Beijing* received a total of 11,232 first instance civil cases relating to IPRs.

* After its establishment on 6 November 2014, the Beijing IP Court started to accept IP-related civil and administrative cases and the intermediate courts in Beijing no longer received new IP related disputes.

9. What are the commonly used defenses for Patent infringement?

  • Defendant's technology does not infringe the plaintiff's patent;
  • Deemed as non-infringement according to Article 69 of Chinese Patent Law:
  1. obtained directly from the patentee or any authorized party by the patentee,
  2. defendant already produces the identical product before filing of application for the patent, but has to maintain within the original scope,
  3. temporarily passes through the territory, territorial water or territorial airspace of China,
  4. for the purpose of scientific research and experimentation, and
  5. for the purpose of providing information needed for the regulatory examination and approval; and
  • Practicing prior art (Article 62 of Chinese Patent Law and Judicial Interpretation).

10. Can I use invalidity as a basis for infringement?

No. Initiation of an invalidation process is not considered as an act of infringement under Chinese law. However, very often, once the plaintiff files the infringement suit, the defendant would try to invalidate the patent right in question.

11. If I file an invalidity request with the Patent Re-examination Board (PRB), will the court stay the infringement case?

According to Articles 9-11 of the Several Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases on Patent Disputes:

Where, in a case involving a dispute over infringement upon an Invention Patent or over infringement upon a Utility Model or Design Patent which has been sustained by the PRB:

  • When the defendant files a Request for Patent Invalidation within the period of submitting statements of defense, the court may rule not to suspend the action.

Wherein cases involving a dispute over infringement upon a Utility Model or Design Patent,

  • When the defendant files a Request for Patent Invalidation within the period of submitting statements of defense, the court shall suspend the action in the absence of:
  1. a positive search report or a patent assessment report provided by the plaintiff,
  2. clear evidence that the technology used by the defendant is in the public domain,
  3. clear evidence that the defendant's request for invalidation is obviously untenable, and / or
  4. at the court's own discretion.

When the defendant files a Request for Patent Invalidation after the expiration of the period of submitting a statement of defense, the court shall not suspend the action, unless it deems the suspension is necessary after review.

12. How to enforce a Utility Model Patent?

The enforcement of a Utility Model Patent by the court is basically the same as that of an Invention Patent. During the infringement litigation, according to Article 8 of the Several Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases on Patent Disputes, as required for the adjudication of a case, the People's Court may require the plaintiff to submit an official search report or a patent assessment report. Where the plaintiff fails to submit the report without any justifiable cause, the People's Court may render a ruling to suspend the action or rule to order for the plaintiff to assume any potential adverse consequences.

13. Is it possible to enforce an Invention Patent, when it is still pending?

Enforcement of a pending patent application is possible only retroactively. Invention Patent applications are protectable after they are published. However, when the patent application is pending, the most the applicant can do is to present the alleged infringer with a warning letter and to collect infringement evidences.

Please note that the warning letter in this case is not a warning letter in a traditional sense. Since the application is still pending, the letter could only remind the alleged infringer that they should have paid an appropriate fee for exploitation of invention.

According to Article 68 of Chinese Patent Law, during the period from the publication of the application to the granting of the patent right, the prescribed timeframe to institute legal proceedings by the patentee to demand the said fee is two years counted from the date on which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the granting of the patent right, the prescribed timeframe should be counted from the date of grant.

14. Why do I need a pre-suit investigation?

Chinese civil litigation has a system which is partially similar to that of discovery / disclosure processes in the USA and the UK respectively, but it is at the court's discretion. In most infringement cases, the plaintiff bears the burden of proof. In other words, the evidence for:

  • the right to sue (e.g. ownership of a valid IP right),
  • infringement act(s),
  • damage incurred, and
  • the direct relation between the infringement act(s) and damage,

shall be presented by the plaintiff to the court. Therefore, evidence to identify the alleged infringer (definitive information), and the infringing acts are very important, hence the obvious need for pre-suit investigation.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.