China: China's Draft Patent Law Seeks Five Fold Increase On Damages Cap For Patent Infringement Cases

Last Updated: 27 January 2016
Article by Ruixue Ran, Sheng Huang and Mark Chu

On December 2, 2015, the State Council of China began soliciting public comments on the new draft amendments to the Patent Law (the "Draft") submitted by the State Intellectual Property Office of China (the "SIPO").The deadline for submitting comments is January 1, 2016.1 Before the Draft, the SIPO publicly released several drafts, and solicited public comments in September 20122 and April 20153. The final draft of the amendments needs to be greenlighted by the State Council before passing to the National People's Congress for approval.

According to the official explanation from the SIPO, this round of amendments is mainly designed to enhance the protection of the interests of patent right holders, to encourage the utilization of patents, to strengthen SIPO's enforcement powers and to level up the quality of the patents.4 Below are the major highlights of the Draft for protection of patent right holders as compared to the current Patent Law.

I. Enhances remedies for patent right holders

Patent right holders usually encounter a series of difficulties when enforcing patent rights, mainly including low damages awards, a deficiency of effective discovery, and willful and repetitive infringement. To solve these problems, the Draft adds the following rules:

  1. Due to the lack of an effective evidence exchange mechanism to access a defendant's financial information, it is difficult for patent right holders to prove up a defendant's illegal profits. As such, where it is difficult to determine the losses incurred to the patentee or the gains obtained or royalties to be paid by the infringer, courts in China can impose statutory damages. Statutory damages are currently set at the court's discretion at an amount between RMB 10,000 (approximately US$ 15,652) and RMB 1 million (approximately US$ 157,480). To give courts increased power, the Draft dramatically increases the cap on statutory damages to RMB 5 million (approximately US$ 787,400).5 In addition, the Draft introduces enhanced damages for willful infringement, for which a damages award can be increased to three times the amount of actual damages.6
  2. To deter a defendant from withholding financial information in its possession, the court may order a defendant to provide such information; otherwise, the court may make an inference based on the claims of the plaintiff and the evidence provided by the plaintiff.7
  3. To prevent repetitive infringement, the government may (a) order the infringer to immediately cease the infringement, (b) confiscate or destroy the infringing products, the parts, tools, modules or machines that are used to manufacture the infringing products or implement the infringing methods, and (c) impose monetary penalties.8
  4. To cope with new types of infringement and effectively protect patent rights, the Draft formalizes some rules that have been used by the courts or provided by lower level regulations. The Draft adds a specific provision for indirect infringement, which includes rules for contributory and inducement infringement.9 If passed, it would be the first time the Patent Law explicitly recognizes indirect infringement, although courts in China have long found indirect infringement in practice. The Draft requires internet service providers to delete, block, disconnect or take other preventive measures to prevent the patent infringement if the internet service provider knows or should have known the existence of patent infringement. The Draft also allows patent right holders and the SIPO to notify the internet service provider (which in China, includes e-commerce platforms) to adopt preventive measures after being notified of patent infringement; otherwise the internet service provider shall be jointly liable with network users for the preventable losses.10 Before the Draft, the SIPO issued the Measures for Patent-related Administrative Law Enforcement in May 2015, which explicitly provides the SIPO may notify e-commerce platforms to delete, block, disconnect or take other measures against web pages containing infringing products.11

II. Strengthens protections for design patents

China is preparing to become a member of the Hague Agreement Concerning the International Registration of Industrial Designs, which requires members to provide at least 15 years protection. Therefore, the Draft lengthens the protection term for design patents from 10 years to 15 years for the design patents.12

The Draft extends protection to partial designs (i.e., design for a part of a product), while protection under the current Patent Law is limited to a whole product. Such an amendment affords stronger protection for design patents.13

Lastly, the Draft adds a six-month domestic priority for design patent applications, which does not exist in the current Patent Law.

Although some proposed changes are designed to curb the abusive actions of patent right holders,14 the proposed changes, especially those regarding enhanced damages and an increase of the statutory damages cap, reflects China's desire to encourage patent right owners to vindicate their rights and foster a more friendly legal environment. In particular, considering the currently busy dockets for patent cases at the specialized intellectual property courts in Beijing, Shanghai and Guangzhou , the docket of patent cases may further surge in China if the increased statutory damages cap of RMB 5 million is passed.






5 Article 68 of the Draft.

6 Id.

7 Id.

8 Article 60 of the Draft.

9 Article 62 of the Draft.

10 Article 63 of the Draft.

11 Article 45 of the Measures for Patent-related Administrative Law Enforcement.

12 Article 42 of the Draft.

13 Article 2 of the Draft.

14 Article 14 and Article 85 of the Draft.

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.