China: Litigation–Procedural Issues For Evidence; What Evidence Is Needed To Obtain High Damages

Last Updated: 19 January 2018
Article by Deqiang Zhu
Most Read Contributor in China, February 2019

For a patent right holder, when infringement is found, it is always considered how to stop it and how to get damages. While stop the infringement should be the primary object, damages play a very important role in deciding the acts of enforcing the patent right against counterfeiting.

Infringement upon a patent right causes economic losses to the patent right holder. In China the determination of amount of damages is stipulated in Article 65 of the Chinese Patent Law. According to this Article, four ways may be taken to determine the amount of damages to be awarded to the claimant in a patent lawsuit: 1) determine the amount of damages on the basis of the actual losses incurred to the patentee as a result of the infringement; 2) determine the amount of damages on the basis of the gains which the infringer has obtained from the infringement; 3) determine the amount of damages by reference to the multiple of the royalties for the patent involved in the patent lawsuit; 4) determine the amount of damages, by taking into account such factors as the type of patent, nature and particulars of the infringement, etc., within a range of not less than 10, 000 RMB but not more than 1 million RMB. Two points should be noted regarding the determination of damages. One is that the four ways mentioned above should be considered in sequence in priority. In other words, if the way first mentioned can be effective to determine the damages, the way or ways following it need not to be considered. Only when it is difficult to determine the damages based on the first mentioned way, the following mentioned way(s) may be taken in the determination of the damages. Another point is that the damages should include the reasonable expenses that the patent right holder has paid for stopping the infringement.

In a patent lawsuit, the claimant bears the burden of proof. This also applies to the determination of damages. To be more exact, the claimant should provide evidence to prove what is claimed is based on evidence. For any of the four ways to determine damages evidence is necessary. For example, if the claimant claims an amount of damages that is determined in accordance with the first way, evidence for proving the amount of the actual losses incurred to the patentee as a result of the infringement should be submitted. Suppose a patent right holder encounters a drop of sales of their product incorporating the patent due to the launching into market of the infringing products, the patent right holder may submit the amount of the drop of patented products and the profit per patented product as evidence to prove the actual losses due to the infringing acts. Sometimes a claimant is not willing to provide the evidence to prove their actual losses even if it can be collected. This may be because such evidence may include some confidential business secret information and the claimant is not willing disclose it.

An alternative may be to determine the patent right holder's losses by multiplying the amount of sales of infringing products by the profit per patented product if it is difficult to determine the amount of reduction of sales of the patented product of the patent right holder. This method is effective in proving damages. It has been used successfully in the invention patent infringement case between Beijing Watch Data Co., Ltd. and Hengbao Co., Ltd. In the case, Beijing Watch sued Hengbao for their USBKEY product's infringement upon the patent for invention of Watch. On December 8, 2016, Beijing Intellectual Property Court issued the first instance judgement (2015) Jing Zhi Min Chu No. 441 and awarded the plaintiff damages of 49 million RMB. From the judgement, it can be known how this method has been used. In this case, the Court issued a Ruling for evidence preservation, according to which the defendant Hengbao is ordered to provide financial documents recording financial data concerning the accused infringing products USBKEY. Hengbao refused to provide effective financial documents recording data. The Court also issued Investigation Letters to entities such as Bank of China and China Financial Certification Center Co., Ltd., who uses the accused infringing products, to collect evidence. On the basis of the written testimony provided by these entities, the Court determined that the amount of the accused infringing products as sold by the defendant is 4.8142 million. The plaintiff also provided financial documents showing the figures of prices and the profit rates of their patented product USBKEY, on the basis of which the plaintiff claims that the profit of their patented product is 10 RMB, which is lower than the average profit of the product according to the plaintiff's calculation. On the basis of the amount of the accused infringing product and the profit of the patented product, the profit amounts to 48.142 million RMB. The plaintiff also alleges that the defendant also sold the accused infringing products to other entities in addition to those who received the Investigation letters from the Court, and that this brought the defendant at least 2 million RMB as profit. The defendant Hengbao objected to the calculation of profits by the plaintiff. The Judgement says considering the defendant did not follow the Court's Ruling for Evidence Preservation to provide relative financial documents recording the relative data which are held by them, it is presumed that the relative data as alleged by the plaintiff is unfavorable to the defendant and the plaintiff's allegation is supported. Adding this 2 million to 48.142 million, the total amount is about 49 million RMB, which is claimed by the plaintiff. Then Beijing IP Court determined 49 million RMB as the total amount of damages as claimed by the plaintiff.

If no evidence can be submitted to prove the actual losses of the patent right holder it would be difficult to determine the damages in accordance with the first way and the second way would be considered. When the claimant requests to take the second way to determine the damages, the amount of the gains which the infringer has obtained from the infringement upon the patent involved in the patent lawsuit should be proven. The evidence for this may include the illegal profit that has been brought to the infringer by the infringing acts. The plaintiff may try to collect information of the infringer's amount of sales of infringing products and the profit rate of the infringing product.

If it is difficult to determine the gains which the infringer has obtained from the infringement, the claimant may try to prove the amount of the royalties for the patent involved in the patent lawsuit. If the claimant once licensed the patent to a third party, the license fee may be referred to.

In many patent infringement cases, it is difficult for the claimant to provide evidence that is necessary for proving the relative damages to be determined in the three ways first mentioned and damages have to be determined in the fourth way, i.e. to be determined by the collegiate bench between 10 thousand and 1 million RMB. Even if for this way, it is not that no evidence is necessary. To provide sufficient evidence is always critical to have the court awarded as high amount as possible of damages. The evidence may be those to prove for example the nature and particulars of the act of infringement, the willfulness of the infringer, the long period of the infringement, the repeating of infringement, the infringement by group of numerous entities, the amount of distributors or sellers and the areas in which the infringing products are sold, etc. below is an example of the application of statutory damages. This is a case about infringement upon a design patent claiming a design of a can for milk powder, in which Abbott (Shanghai) Trading Company sued several entities who manufactured and sold cans of rice powder. This case is one of the top ten typical intellectual property cases in Beijing court system. In this case the Court awarded the amount of 1 million RMB which is the upper limit of the statutory damages. According to the judgement of this case (2014) Chao Min (Zhi) Chu No. 28014, which was issued by the Court of Chaoyang District of Beijing, the Court considers the numerous channels of selling the infringing products, the infringer's subjective fault among other factors, in deciding the damages. According to the judgement, the plaintiff can still purchase the infringing products from the market two months after the service of the preliminary injunction ruling, which shows that the amount of sales of the infringing products is huge on the one hand, and shows that the defendants have series subjective fault on the other hand. The defendant was not satisfied with this case and appealed. Beijing Intellectual Property adjudicated the case in the second instance and maintained the judgement in the first instance.

It is not rare that a patent right holder will have difficulty for collecting evidence for proving infringement and damages in particular. Two main special legal measures may be considered for trying to seek support from the court in collecting evidence. The Civil Procedural Law provides the court's responsibility and authority to collect evidence for some particular circumstances. One of the circumstances is that the evidence cannot be collected by a party and its litigation representative for some objective reasons and the evidence is deemed by the court as necessary for trying a case. In such case, in which the court investigates and collects evidence, the relevant entities and individuals should not refuse to provide the evidence. If the relevant parties refuse to provide evidence they hold, it will be deemed that the evidence is unfavorable to them and the plaintiff's allegation will be supported, like what happened in the case between Watch and Hengbao as mentioned above.

There is also a court's procedure of evidence preservation, which may be utilized by a patent right holder if it is difficult for them to collect evidence by themselves. If any evidence may be extinguished or may be hard to obtain at a later time, a party may, in the course of an action, apply to the court for evidence preservation, and the court may also take preservation measures on its own initiative.

If any evidence may be extinguished or may be hard to obtain at a later time, if the circumstances are urgent, an interested party may, before instituting an action or applying for arbitration, apply for evidence preservation to a court at the place where the evidence is located or at the place of domicile of the respondent or a court having jurisdiction over the case. It can be imagined that if such particular measures can be utilized effectively it will be hopeful to not only stop infringing acts but also get high damages to have the IP right protected effectively.

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.

Similar Articles
Relevancy Powered by MondaqAI
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions