Patent Laws And Regulations China 2026

Article Insights

1. Patent Enforcement

1.1 Before what tribunals can a patent be enforced against an infringer? Is there a choice between tribunals and what would influence a claimant's choice?

In China, a patent can be enforced either before (i) people's courts through civil litigation, or (ii) administrative authorities such as the China National Intellectual Property Administration (“CNIPA”) or local intellectual property (“IP”) offices through administrative enforcement proceedings.

The factors that would influence a claimant's choice may include: (i) that damages can be claimed in a civil lawsuit, but will not be awarded in administrative enforcement proceedings; (ii) that normally, the administrative enforcement proceeding is faster than civil litigation; and (iii) that the courts are more experienced in dealing with cases involving high technical complexity.

1.2 Can the parties be required to undertake alternative dispute resolution before commencing court proceedings? Is mediation or arbitration a commonly used alternative to court proceedings?

Arbitration is not an option for solving patent infringement issues; whereas, mediation is a commonly used resolution. When agreed by the parties, the Chinese courts or administrative authorities may arrange mediation sessions during any stage of the proceeding before the case is concluded.

1.3 Who is permitted to represent parties to a patent dispute in court?

A party may appoint (i) lawyers, (ii) legal service workers, (iii) close relatives or employees of the party, or (iv) citizens recommended by the party's community, employer, or relevant social organisations, such as a patent attorney, to represent such entity in the patent infringement proceedings. If a foreign entity would like to entrust a lawyer in the proceeding, then only a qualified Chinese lawyer can be appointed.

1.4 What has to be done to commence proceedings, what court fees have to be paid and how long does it generally take for proceedings to reach trial from commencement?

To initiate a patent infringement lawsuit, the plaintiff would typically need to file a complaint, along with preliminary supporting evidence such as the patent document, existence of infringement activities, and relevant formality documents. 

Court fees are generally required to be paid at the time of filing the case, which would be calculated based on the amount of damages claimed by the plaintiff, following a sliding scale set by the Chinese authorities. For example, if the claimed damages in dispute are RMB 1 million, then the court fees shall be RMB 13,800.

It usually takes several months before the case proceeds to the first formal trial. However, if the jurisdiction is challenged by the defendant, then it may take an additional three to six months before the first trial.

1.5 Can a party be compelled to disclose relevant documents or materials to its adversary either before or after commencing proceedings, and if so, how?

An interested party has the right to apply to the court to preserve evidence before or during the civil proceeding, provided the interested party could demonstrate the situation is urgent and the evidence may be lost or difficult to obtain in the future. The court has discretion to accept or refuse such an application. 

Additionally, the court may, upon the request of a party, issue an order requiring the other party to produce evidence. Failure to comply with such order may result in adverse consequences for that party. Again, whether or not to issue such order is at the court's discretion.

1.6 What are the steps each party must take pre-trial? Is any technical evidence produced, and if so, how?

Before trial, the plaintiff shall submit the complaint and supporting evidence. Some courts may require a claim chart for accepting the case file. Technical evidence such as expert reports, appraisal opinions, or testing reports is usually submitted during the evidence exchange stage. Usually, the first hearing set by the court is to exchange the evidence.

1.7 How are arguments and evidence presented at the trial? Can a party change its pleaded arguments before and/or at trial?

Arguments and evidence are mainly presented in writing and then explained orally during the hearing. The parties may apply for a technical expert or economist to attend the court hearing, to support their arguments. Parties may change their pleaded arguments before the conclusion of court debates in the first-instance proceedings, but it may undermine the credibility before the court.

1.8 How long does the trial generally last and how long is it before a judgment is made available?

The length of the trial depends on the complexity of the case – for simple cases, the first-instance proceedings generally take six months from case filing to the issuance of the first-instance judgment, while for complex technical cases, the process may take one to two years.

1.9 Is there any alternative shorter, flexible or streamlined procedure available? If so, what are the criteria for eligibility and what is the impact on procedure and overall timing to trial?

Administrative enforcement proceedings before local IP offices offer a faster alternative to court proceedings. This option is mainly available for straightforward patent infringement cases that do not involve complex technical issues or damages claims. It may only take a few months to conclude the case, significantly shortening the overall timeline compared to litigation.

1.10 Are judgments made available to the public? If not as a matter of course, can third parties request copies of the judgment?

Effective judgments will usually be made public, except for judgments involving state secrets, trade secrets, personal privacy, cases concluded by mediation, or cases involving situations deemed inappropriate for online publication by the court.

1.11 Are courts obliged to follow precedents from previous similar cases as a matter of binding or persuasive authority? Are decisions of any other jurisdictions considered persuasive?

China is not a common-law jurisdiction, so the courts are not obliged to follow precedents. However, guiding cases issued by the Supreme People's Court, typical cases released by each level of courts, and decisions made by higher-level courts would have certain guiding and persuasive effects. Judgments from other jurisdictions can be submitted as a reference but may have limited influence.

1.12 Are there specialist judges or hearing officers, and if so, do they have a technical background?

In patent infringement cases, the court may appoint technical investigators with a technical background to attend the hearing and help with reviewing the technical issues.

1.13 What interest must a party have to bring (i) infringement, (ii) revocation, and (iii) declaratory proceedings?

Regarding infringement cases, the patentee or licensees under a patent licence agreement may file a lawsuit with the court. Among licensees: an exclusive licensee may file a claim independently; a sole licensee may file the case if the patentee does not do so; while other licensees can only file the case with the patentee's authorisation.

Regarding revocation/invalidity proceedings, any entity or individual can file the request before the CNIPA to declare the patent invalid.

A party who receives a warning letter from the right holder can seek declaratory judgment for non-infringement if the right holder neither withdraws the warning nor files a lawsuit within a certain time period.

Following the patent linkage rule, the patentee can seek a declaratory judgment requesting a ruling on whether the relevant technical solution of the generic drug falls within the protection scope of the patent concerning the original drug.

1.14 If declarations are available, can they (i) address non-infringement, and/or (ii) claim coverage over a technical standard or hypothetical activity?

For the declaration for non-infringement, please refer to question 1.13 above.

For the declaration for coverage over a technical standard, usually, a patentee can request the court to rule on whether the accused product falls into the protection scope of the standard essential patent (“SEP”), which has the similar effect as the claim for coverage over a technical standard.

1.15 Can a party be liable for infringement as a secondary (as opposed to primary) infringer? Can a party infringe by supplying part of, but not all of, the infringing product or process?

A party may be found liable as an indirect infringer by inducing others committing direct infringement or making a contribution to the direct infringement, such as supplying components or raw materials while knowing such components or raw materials are specially used for implementing a patent.

1.16 Can a party be liable for infringement of a process patent by importing the product when the process is carried on outside the jurisdiction?

Yes. Under Chinese Patent Law, it is prohibited to import products that are directly obtained through a patented process for production or business purposes without the patentee's permission.

1.17 Does the scope of protection of a patent claim extend to non-literal equivalents (a) in the context of challenges to validity, and (b) in relation to infringement?

The doctrine of equivalents is generally used in patent infringement cases, instead of invalidity proceedings.

In infringement cases, if the technical features of the accused product or method are not literally identical to those in the patent claims but are essentially the same in technical means, function, and effect, and would be considered obvious substitutes by a person skilled in the art, the accused solution may constitute equivalent infringement.

1.18 Can a defence of patent invalidity be raised, and if so, how? Are there restrictions on such a defence, e.g. where there is a pending opposition? Are the issues of validity and infringement heard in the same proceedings or are they bifurcated?

The invalidity of a patent will not be heard in a patent infringement proceeding. The defendant must file a separate patent invalidity request before the CNIPA. If the decision issued by the CNIPA determines the patent invalid, the court will directly dismiss the patent infringement case.

1.19 Is it a defence to infringement by equivalence that the equivalent would have lacked novelty or inventive step over the prior art at the priority date of the patent (the “Formstein defence”)?

The Formstein defence is not a typical defence under Chinese Patent Law. In China, there is a similar “prior art defence”, i.e. the alleged infringing technology was the same or substantially similar to the technology in the prior art.

1.20 Other than lack of novelty and inventive step, what are the grounds for invalidity of a patent?

In addition to lack of novelty and inventiveness, the grounds for patent invalidation include when: (1) the specification is unclear or incomplete; (2) the claims are not supported by the specification or are unclear; (3) amendments to the application documents go beyond the original disclosure; (4) the patent application was not filed in good faith; or (5) the independent claims lack the essential technical features necessary to solve the technical problem, etc.

1.21 Are infringement proceedings stayed pending resolution of validity in another court or the Patent Office?

It depends. The judge has the discretion on whether to stay the infringement proceedings pending the invalidation proceeding.

1.22 What other grounds of defence can be raised in addition to non-infringement or invalidity?

In addition to the non-infringement, invalidity, and the above-mentioned prior art defence, the defendant may also raise: (i) prior use right defence, claiming prior commercial use of the technology before the patent application date; (ii) non-infringement due to bolar exemption; and (iii) legitimate source defence, where the user or seller of the alleged infringing product can claim exemption from monetary liability by proving the product was obtained from a lawful source without knowledge of the patent infringement.

1.23 Are preliminary injunctions available on (i) an ex parte  basis, or (ii) an inter partes basis? In each case, what is the basis on which they are granted and is there a requirement for a bond? Is it possible to file protective letters with the court to protect against ex parte injunctions? 

In principle, the preliminary injunction should be granted on an inter partes basis. However, if the situation is urgent or prior notice to the defendant could affect the enforcement of the injunction, the court may decide to grant the preliminary injunction on an ex parte basis.

Factors to be considered for granting preliminary injunction include (1) validity and stability of the patent in dispute, (2) probability for the right holder to win the case, (3) irreparable harm to the right holder, (4) balance of interests between the right holder and the alleged infringer, and (5) social and public interest.

The petitioner for the preliminary injunction should provide a bond. There is no provision about protective letters against preliminary injunction under Chinese Patent Law.

1.24 Are final injunctions available and what is the basis on which they are granted? 

Usually, if the patent infringement is found, as requested by the plaintiff, the court will issue a final injunction as a part of the judgment, requiring the defendant to cease infringement actions.

1.25 Is a public interest defence available to prevent the grant of injunctions where the infringed patent is for a life-saving drug or medical device?

Yes, public interest defence and compulsory licences are available in China, but such cases are very limited in practice.

1.26 Are damages or an account of profits assessed with the issues of infringement/validity or separately? On what basis are damages or an account of profits assessed? Are punitive/flagrancy damages available?

The issue of damages is assessed along with the issue of infringement in the same court proceedings. Damages are assessed on the following basis:

1. the actual loss suffered by the patentee or the illegal profit gained by the infringer;
2. alternatively, a multiple of the royalties of the asserted patent; or
3. statutory damages ranging from RMB 30,000 to RMB 5 million according to the type of patent rights, as well as the nature and circumstances of the infringement act, etc.

Punitive/flagrancy damages, which can be one to five times the damages assessed above, are available if the infringement is committed intentionally and the circumstance is serious.

1.27 How are orders of the court enforced (whether they be for an injunction, an award of damages or for any other relief)?

If the defendant refuses to voluntarily comply with the injunction order, the plaintiff must file a separate compulsory enforcement proceeding. In addition, if the defendant violates the injunction, a fine, detention or even criminal liability would be imposed subject to the severity of such violation.

1.28 What other form of relief can be obtained for patent infringement? Would the tribunal consider granting cross-border relief?

In addition to injunctions and damages, the court may also order the defendant to destroy tools and moulds specifically designed for infringement. Usually, the court would not consider cross-border relief.

1.29 How common is settlement of infringement proceedings prior to trial?

It is quite common for the parties to settle a patent infringement case during the litigation, but mostly after the first trial and under the mediation of the court judges.

1.30 After what period is a claim for patent infringement time-barred?

The statute of limitations for a patent infringement claim is three years from the date the patentee knew or should have known of the infringing act.

1.31 Is there a right of appeal from a first-instance judgment, and if so, is it a right to contest all aspects of the judgment?

The first-instance patent infringement judgment can be appealed to the IP Court of the Supreme People's Court, contesting all aspects of the judgment.

1.32 What effect does an appeal have on the award of: (i) an injunction; (ii) an enquiry as to damages or an account of profits; or (iii) an order that a patent be revoked?

The appellate court can maintain or revoke the first-instance judgment or remand the case back to the first-instance court, covering all aspects including injunction and damages. The court in a civil proceeding will not directly revoke a patent.

1.33 Is an appeal by way of a review or a rehearing? Can new evidence be adduced on appeal?

Normally, there will be a rehearing for the appeal. New evidence is allowed to be adduced on appeal.

1.34 How long does it usually take for an appeal to be heard?

It depends on the complexity of the case. Usually, the appeal proceeding for a patent infringement case is eight months to 1.5 years.

1.35 How many levels of appeal are there? Is there a right to a second level of appeal? How often in practice is there a second level of appeal in patent cases?

For patent infringement lawsuits, there is only one level of appeal in China, which is exclusively governed by the IP Court of the Supreme People's Court. The second-instance judgment is final and effective. A retrial petition can be filed before the Supreme People's Court, but the effectiveness of the second-instance judgment will not be impacted unless it is overturned by the retrial proceeding.

1.36 What are the typical costs of proceedings to a first-instance judgment on: (i) infringement; and (ii) validity? How much of such costs are recoverable from the losing party? What are the typical costs of an appeal and are they recoverable?

The attorney fees would vary in different cases. The reasonable attorney fees occurred by the plaintiff in the patent infringement proceeding can be recovered if the plaintiff wins the case and supporting evidence for reasonable expenses is provided.

The court fees for the patent infringement case depend on the amount claimed by the plaintiff. For example, if the amount in dispute is RMB 1 million, the litigation fees shall be RMB 13,800. 

The court fees for a patent invalidity proceeding before the CNIPA is very limited, which is RMB 1,500 for a utility model/design patent, and RMB 3,000 for an invention patent.

2. Patent Amendment

2.1 Can a patent be amended ex parte after grant, and if so, how?

No, the patentee cannot amend the patent ex parte after grant.

2.2 Can a patent be amended in inter partes revocation/invalidity proceedings?

Yes, the patentee has the chance to amend the patent during invalidity proceedings.

2.3 Are there any constraints upon the amendments that may be made?

After the patent is granted, the amendment to the claims shall not go beyond the scope of the original recitations of claims and specification, and shall usually be made in the following manners: (i) deleting a claim or a technical solution in a claim; (ii) adding feature(s) from other claim(s) into a claim; and (iii) correcting obvious errors.

3. Licensing

3.1 Are there any laws that limit the terms upon which parties may agree a patent licence?

According to Chinese laws, terms of a patent licence that illegally monopolise technology or infringe on the technology of a third party are invalid. Some typical situations are as follows:

1. restricting one party from carrying out new research and development on the basis of licensed technology, or restricting a party from using the improvement, or when the conditions for exchanging the improvement are not reciprocal;
2. restricting one party from obtaining, from other sources, the technology similar to or competitive with licensed technology;
3. obstructing one party from fully exploiting the licensed technology in a reasonable way in light of market demand;
4. requiring the other party to accept incidental conditions that are not indispensable for exploiting the technology, such as purchasing unnecessary technology, raw materials, products, equipment, services or accepting unnecessary personnel, etc.;
5. unreasonably restricting the channels or sources through which the technology recipient purchases raw materials, parts, products or equipment, etc.; and
6. prohibiting the other party from raising objections to the validity of the licensed IP right or attaching conditions to the objections raised.

3.2 Can a patent be the subject of a compulsory licence, and if so, how are the terms settled and how common is this type of licence?

Compulsory licences are available in China, but in practice they are very rare.

The scope and term of the compulsory licence shall be determined by the CNIPA in the decision for the compulsory licence. The terms related to the licence fee shall be negotiated between parties and a party can request the CNIPA to decide the licence fee if it cannot be agreed through negotiation.

4. Patent Term Extension

4.1 Can the term of a patent be extended, and if so, (i) on what grounds, and (ii) for how long?

The term of a patent can be extended under two specific circumstances: (i) for unreasonable delay in the patent prosecution for the invention patent, unless such delay is caused by the applicant; and (ii) for delays in obtaining regulatory approval for a new drug, but the extension of a new drug patent may not exceed five years and the total effective term cannot exceed 14 years after a new drug is approved for marketing.

5. Patent Prosecution and Opposition

5.1 Are all types of subject matter patentable, and if not, what types are excluded?

The following subject matters are not patentable in China: (i) scientific discoveries; (ii) rules and methods for mental activities; (iii) methods for diagnosing or treating diseases; (iv) animal and plant varieties (except for the production methods of the products); (v) substances obtained by means of nuclear transformation; and (vi) designs of two-dimensional printing goods, made of the pattern, colour, or a combination of the two, which serve mainly as indicators.

5.2 Is there a duty to the Patent Office to disclose prejudicial prior disclosures or documents? If so, what are the consequences of failure to comply with the duty?

No, it is not compulsory for the applicant to disclose prejudicial prior documents to the CNIPA.

5.3 May the grant of a patent by the Patent Office be opposed by a third party, and if so, when can this be done?

A third party may either file a public opinion against a pending patent application or file a patent invalidation petition against a patent after the patent is granted.

5.4 Is there a right of appeal from a decision of the Patent Office, and if so, to whom?

Yes, the applicant may file an administrative lawsuit before the Beijing Intellectual Property Court against the decision made by the CNIPA.

5.5 How are disputes over entitlement to priority and ownership of the invention resolved?

The entitlement to priority of the invention patent may be examined in the patent prosecution or patent invalidation proceedings. The ownership of the invention patent may be resolved through civil litigation before the court or mediation process before the IP offices.

5.6 Is there a “grace period” in your jurisdiction, and if so, how long is it?

Yes, Chinese Patent Law provides a six-month grace period for disclosures made during the following circumstances, which will not destroy the novelty of the patent application: (i) if it was first published for the purpose of public interest when a state of emergency or extraordinary situation occurred in the country; (ii) if it was first exhibited at an international exhibition sponsored or recognised by the Chinese government; (iii) if it was first made public at a prescribed academic or technological meeting; or (iv) if it was disclosed by another person without the consent of the applicant.

5.7 What is the term of a patent?

In China, without a patent term extension, the term of an invention patent is 20 years, a utility model is 10 years and a design patent is 15 years, from the application date.

5.8 Is double patenting allowed?

No, double patenting is generally not allowed in China. In China, an applicant could apply for an invention patent and a utility model patent on the same day based on the same invention, but it must voluntarily withdraw one of the patents to avoid double patenting after the invention patent is granted.

5.9 For Member States within the European Union: Can a Unitary Patent, on grant, take effect in your jurisdiction? If your Member State has not yet signed or ratified the Unified Patent Court Agreement, is it likely to do so and, if so, when?

This is not applicable to our jurisdiction.

6. Border Control Measures

6.1 Is there any mechanism for seizing or preventing the importation of infringing products, and if so, how quickly are such measures resolved?

Yes, China provides a structured customs enforcement regime under two models: one is protection of the right holder's application; while the other is proactive protection by customs based on prior recorded IP.

Under the circumstance of a proactive protection model, customs may detain the goods and actively review and determine whether such goods have infringed upon the recorded IP and make a decision within 30 days once the detention is made. If customs feels that it is unable to determine infringement and there is no injunction or property preservation issued by the court with 50 days after the detention, it may then release the detained goods.

Under the circumstance of protection based on application, customs will not actively decide whether the petitioned goods constitute infringement; the IP owner has to obtain written decisions from a court within a much shorter time limit, otherwise the goods will be released.

7. Antitrust Law and Inequitable Conduct

7.1 Can antitrust law be deployed to prevent relief for patent infringement being granted?

Generally speaking, the answer is no. However, SEP-related cases are an exception. If a SEP holder with a dominant market position violates the FRAND (fair, reasonable, and non-discriminatory) principle and requests the court to issue an injunction, such activity may be subject to review under the antitrust law.

7.2 What limitations are put on patent licensing due to antitrust law?

The principle is that patent licensing should not eliminate or restrict market competition. Typical behaviours would include that, without justifiable cause, the market dominant (i) requires a party to grant an exclusive licence or grant back a licence for its improvement, (ii) prohibits a party from challenging the validity of its IP rights, (iii) restricts a party from utilising competitive technologies or products after the expiration of the licensing agreement, or (iv) imposts a party with unreasonable licence clauses, etc.

7.3 In cases involving standard essential patents, are technical trials on patent validity and infringement heard separately from proceedings relating to the assessment of fair, reasonable and non-discriminatory (FRAND) licences? Do courts set FRAND terms (or would they do so in principle)? Do courts grant FRAND injunctions, i.e. final injunctions against patent infringement unless and until defendants enter into a FRAND licence?

In China, the validity of a SEP will be heard before the CNIPA, while the infringement of a SEP will be heard before the court. When required by the plaintiff, the Chinese courts can set, and have experience in setting, FRAND terms.

The courts may grant conditional injunctions in SEP-related cases. For example, recently, the Fuzhou Intermediate Court granted VoiceAge EVS an injunction against HMD Global Oy, on the condition that HMD failed to conclude a licence with EVS within two months after the effective date of the injunction.

8. Current Developments

8.1 What have been the significant developments, including any leading cases, in patent law and practice in your jurisdiction in the last year?

In December 2024, China's Supreme Court issued an anti-anti-suit injunction (“AASI”) in the Huawei vs. Netgear case, prohibiting Netgear's use of foreign judicial proceedings to obstruct Huawei's patent litigation and associated enforcement in China. This is China's first AASI in the field of SEPs.

8.2 Are you looking forward to any particular developments in patent law or practice in the coming year or two and what effect might they have in your jurisdiction?

We look forward to seeing the cases involving interim licences in SEP-related cases. In addition, we expect to see a formal version of the patent linkage rules to be issued, after the pilot version issued in 2021.

8.3 Are there any general trends in patent practice and the enforcement of patents that have become apparent in your jurisdiction over the last year or so?

There has been particular emphasis on flexible administrative enforcement to address emerging issues arising from increasingly novel, complex, and technologically sophisticated IP infringement cases, so more and more patentees now would prefer to choose administrative proceedings to enforce their patents.

8.4 Are there any key issues in relation to patent law or practice that you feel are not addressed by the questions above which are worth mentioning here?

No, there are not.

Originally Published by ICLG

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.