Legislation
The Patent Law is enacted to protect the legitimate rights of patentees, to encourage inventions-creations, to advance the exploitation of inventions-creations, to enhance innovation capability, and to promote the progress of science and technology and the development of economy and society.
Patent Law & Implementing Regulations
Patent Law: Adopted by the Standing Committee of National People's Congress on March 12, 1984 and entering into force on April 1, 1985, amended for the first time on September 4, 1992 and entering into force on January1, 1993, amended for the second time on August 25, 2000 and entering into force on July 1, 2001, amended for the third time on December 27, 2008 and entering into force on October 1, 2009, amended for the fourth time on October 17, 2020 and entering into force on June 1, 2021.
Implementing Regulations: Promulgated by the State Council on January 19, 1985 and entering into force on April 1, 1985; revised on December 21, 1992 and entering into force on January 1, 1993; and repealed on July 1, 2001. Promulgated on June 15, 2001 and entering into force on July 1, 2001, revised for the first time on December 28, 2002 and entering into force on February 1, 2003, revised for the second time on January 9, 2010 and entering into force on February 1, 2010, and revised for the third time on December 11, 2023 and entering into force on January 20, 2024.
Rules and Measures
Measures for Administrative Enforcement of Patents: Promulgated by the CNIPA on December 29, 2010 and entering into force on February 1, 2011; amended on May 29, 2015 and entering into force on July 1, 2015.
Guidelines for Determination of Patent Infringement (Trial Implementation): Promulgated by the CNIPA on May 5, 2016 and entering into force on May 5, 2016.
Guidelines for Administrative Mediation of Patent Disputes (Trial Implementation): Promulgated by the CNIPA on May 5, 2016 and entering into force on May 5, 2016.
Measures for Administrative Adjudication and Mediation of Patent Disputes: Promulgated by the CNIPA on December 26, 2024 and entering into force on February 1, 2025.
China Patent Administration
The China National Intellectual Property Administration (CNIPA) is responsible for the patent work throughout the country. It receives and examines patent applications, and grants patents in accordance with the law. The local intellectual property offices in provinces, autonomous regions and municipalities directly under the central government are responsible for the administrative work concerning patents in their respective administrative areas.
Types of Patents
Inventions and creations or invention-creations in the China patent law include inventions, utility models, and designs. Accordingly, there are three types of patents in China, i.e. invention patents, utility model patents and design patents.
Obtaining a Patent
For obtaining a patent, the rights holder of invention-creations may directly submit a patent application to the CNIPA. After examinations, the CNIPA will grant a patent if the conditions for granting a patent are met.
For the details about obtaining a patent, please see Invention Patents, Utility Model Patents, Design Patents in China.
Patent Rights
After the grant of a patent for invention, except where otherwise provided for in the Patent Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.
After the grant of a patent for utility model, except where otherwise provided for in the Patent Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, for production or business purposes.
After the grant of a patent for design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, offer to sell, sell or import the product incorporating the patented design, for production or business purposes.
Scope of Patents
Invention or Utility Model Patents
The scope of a patent for invention or utility model shall be determined by the content of the claims. The description and the drawings may be used to interpret the content of the claims.
The phrase "determined by the content of the claims" means that the scope of patent should be determined by the technical features recited in the claims, including features equivalent to those recited (doctrine of equivalent).
Where an alleged infringing technical solution contains technical features identical or equivalent to all the technical features recited in a patented claim, it shall be determined that it falls within the scope of the patent. Where, compared with all the technical features recited in the claim, the technical features of the alleged infringing technical solution lack one or more technical features recited in the claim, or at least one technical feature of the claim cannot be found identical or equivalent to any of the technical features of the alleged infringing technical solution, it shall be determined that it does not fall within the scope of the patent.
Identical technical features mean that the technical features of the alleged infringing technical solution are entirely the same as the corresponding technical features recited in the claims of the patent, or the technical features of the alleged infringing technical solution are subordinate concepts.
Equivalent features are features that perform substantially the same function through substantially the same means, and achieve substantially the same effects as the recited features, and that a person of ordinary skill in the art could have conjured up without engaging in creative effort at the time the alleged infringement occurred.
Estoppel Doctrine
Where, regarding a technical solution that has been abandoned via amending the claims, description and drawings, or submitting observations by a patent applicant or patentee in administrative procedures or legal proceedings for patent/trademark granting and validity affirmation, the rights holder, in a case involving the administrative adjudication on a patent infringement dispute, retracts the abandonment and includes such abandoned technical solution back into the scope of the patent, the patent administrative authority shall not support the rights holder's claim.
If the rights holder proves that the narrowing amendments made to the claims, description and drawings or the observations submitted by the patent applicant or the patentee in administrative procedures or legal proceedings for patent/trademark granting and validity affirmation have been explicitly denied, the patent administrative authority shall determine that such amendments or observations did not result in the abandonment of the technical solution.
Unclaimed Technical Solution
Where, in a case involving the administrative adjudication on a patent infringement dispute, the rights holder includes into the scope of a patent a technical solution that is described only in the description or drawings but not in the claims of the patent, the patent administrative authority shall not support such inclusion.
Design Patents
The scope of protection of a patent for design shall be determined by the design of the product as shown in the drawings or photographs. The brief specification may be used to interpret the design of the product as shown in the drawings or photographs.
Where a design identical or similar to a patented design involved in a case was adopted on the product whose category is identical or similar to that of the product incorporating the patented design involved in the case, it shall be determined that the alleged infringing design falls within the scope of the design patent involved in the case.
When determining whether the alleged infringing design is identical or similar to the design involved in the case, it shall be determined whether the product category is identical or similar based on the use of the product incorporating the design, and a comprehensive judgment on the design features shall be made based on the overall visual effect of the design. Design features that are primarily determined by technical functions and features of the product such as materials and internal structures that have no effect on the overall visual effect shall not be considered.
Patent Protection
After being granted a patent, the patentee enjoys the aforementioned patent rights within the scope of protection, which are protected under the Patent Law.
Where another party exploits a patent without the patentee's authorization, it constitutes infringement of the patent, except where otherwise provided for in the Patent Law. Any disputes arising from patent infringement shall be resolved through negotiation between the parties. If the parties are unwilling to negotiate or the negotiation fails, the patentee or interested party may institute a lawsuit in the court (seeking judicial relief) or request the patent administrative authority to handle the dispute (seeking administrative relief).
This article will discuss the proceedings for administrative relief.
For seeking judicial relief, please refer to the
Patent Protection via Judicial Relief, China Patent System VI.
Patent Infringement
Where another party exploits a patent without the patentee's authorization, except where otherwise provided for in the Patent Law, it constitutes infringement on the patent, which includes the following acts:
(1) Making, using, offering to sell, selling, or importing a patented product for production or business purposes without the authorization of the patentee of an invention or utility model patent;
(2) Using a patented process and using, offering to sell, selling, or importing product directly obtained by the patented process, for production or business purposes, without the authorization of the patentee of an invention patent; or
(3) Making, offering to sell, selling, or importing the product incorporating a patented design for production or business purposes, without the authorization of the patentee of a design patent.
Determination of Patent Infringement
In preparation of petition documents and responses for administrative relief, rights holders or other relevant parties may refer to the following definitions of factors that the patent administrative authority will consider in determining patent infringement.
For production or business purposes
Production or business purposes refer to industrial and agricultural production or commercial purposes, and do not include non-commercial private consumption. To determine whether private exploitation of a patent constitutes an act for production or business purposes, the key is to determining whether it is for commercial purposes. Exploiting a patent for personal use or consumption generally does not constitute acts for production or business purposes, while privately offering to sell and selling should be determined to be “for production or business purposes”. For example, privately selling a patented product to friends or neighbors without the rights holder's authorization constitutes patent infringement; hiring others to exploit a patent for private use without the rights holder's authorization also constitutes patent infringement.
Determining whether engaging in public services, public welfare, or charitable activities falls under the category of not for production or business purposes should be analyzed in light of the specific circumstances of each case. The nature of the entity does not determine the non-production or non-business nature of its activities; the focus should be on examining whether the activities per se are for production or business purposes. Where the making, using, importing or other activities of government authorities, non-profit organizations, or social groups are not solely for public services, public welfare, or charitable purposes, they may also constitute production or business activities. Market-based public service entities cannot assert a non-production or non-business purpose defense when exploiting patents without authorization in their public service activities.
The production or business purposes do not necessarily require profit-making, while profit-making activities should be considered as activities for production or business purposes. The making, using, and importing of patented products and using of patented processes may be conducted for production or business purposes or for non-production or non-business purposes, while selling and offering to sell are generally conducted only for production or business purposes. Where an entity exploits a patent without authorization for the benefit of its employees and for their own needs, it cannot assert the non-production or non-business purposes defense, even if it does not profit.
Making
For invention and utility model patents, making refers to the production or formation of a product that possesses all the technical features identical or equivalent to those recited in the patent claims. For design patents, making refers to the production or formation of a product that incorporates the design depicted in the drawings or photographs of the design patent.
The object of making must be the patented product, and making includes acts that form the patented product protected by the patent claims by chemical reactions of raw materials or physical assembly of components.
Using
For invention or utility model product patents, using refers to the utilization of the technical functionality of the product's technical solution as recited in the claims. Such utilization is not limited to the use of the product indicated in the description of the patent, unless the claims explicitly state such use. For process patents, using refers to the implementation of each step of the technical solution of the patented process as recited in the claims. The results of using the process do not affect the determination of whether patent infringement has occurred.
Using a product that infringes an invention or utility model patent as a part or component or intermediate product to manufacture another product generally constitutes use of the infringing product.
Simply using a product that infringes a design patent does not constitute patent infringement.
Selling
Selling infringing products refers to transferring the ownership of infringing products that fall within the scope of product claims, infringing products obtained directly by a patented process, or infringing products incorporating patented designs from the seller to the buyer for a fee. Transfers of ownership of these products by bundling or other means for disguised commercial gain also constitute selling the products.
The completion of a selling act is determined by the legal formation of a contract; and actual performance of the contract is not required. Seller’s failure to deliver the product after the contract is established does not affect the determination that the selling act has been established.
Using a product that infringes an invention or utility model patent as a part or component in the manufacture and sale of another product shall be considered as selling the infringing products.
Using a product that infringes a design patent as a part or component in the manufacture and sale of another product shall be deemed an act of selling a product that infringes a design patent, unless the infringing product merely serves a technical function in such another product. Merely serving a technical function means that the part or component does not produce a visual effect during normal use of the final product and only has a technical function. This lack of visual effect may occur because the part or component is located in an invisible location, such as inside the final product, or because the part or component is partially obscured, making it impossible to distinguish the infringing product as a whole from existing designs.
Offering to sell
Where an alleged infringer expresses the intention to sell a product that infringes another person's patent before the actual sale of the infringing product occurs, it constitutes offering to sell.
Where an alleged infringer expresses the intention to sell a product that infringes another person's patent through advertising, displaying the product in a store window, exhibiting the product online or at a trade show, or mailing the product for trial use, etc., such acts can be determined to be offering to sell. The offer to sell can also be made verbally, by phone, or by fax, etc.
Offering to sell includes both an offer and an invitation to offer under contract law. The key to the establishment of offering to sell is not who first proposes the intention to enter into a contract; as long as the alleged infringer indicates their intention to provide the infringing product, it constitutes offering to sell.
The act of offering to sell itself constitutes an independent and direct infringement on patent. It is not a preparatory act prior to actual selling, and therefore, whether actual selling occurs subsequently cannot be used to determine the establishment of offering to sell. Where an infringing product is offered to sell and the product subsequently sold does not fall within the scope of the patent, this does not affect the determination that patent infringement by way of offering to sell has been established, even if patent infringement by way of selling is not established.
Importing
Importing infringing products refers to the act of transporting infringing products that fall within the scope of claims of product patents, infringing products directly obtained by using patented processes, or infringing products incorporating patented designs from abroad into the territory of China.
Exceptions to infringement
The following circumstances shall not be deemed as patent infringement:
(1) Using, offering to sell, selling or importing a patented product or a product directly obtained by a patented process after it is sold by the patentee or an entity or individual authorized by the patentee;
(2) Having already made the same product, used the same process, or having made necessary preparations for such making or using before the filing date of the patent, and continuing to make the product or use the process only within the original scope;
(3) Using the relevant patent in the devices and equipment of a foreign transport vehicle that of temporarily passes through China's land, territorial waters or airspace for its own needs in accordance with the agreement signed between its country and China or the international treaty both countries have joined, or in accordance with the principle of reciprocity;
(4) Using the relevant patent exclusively for scientific research and experimentation;
(5) Making, using or importing patented drugs or patented medical devices for the purpose of providing information required for administrative approval, as well as making or importing patented drugs or patented medical devices exclusively for such purposes.
Prior Art Defense
In a patent infringement dispute, if the alleged infringer has evidence proving that the technology they exploit is prior art, this does not constitute patent infringement.
Existing Design Defense
In a design patent infringement dispute, if the alleged infringer has evidence proving that the design they exploit is an existing design, this does not constitute patent infringement.
Prior use defense
Item (2) under “Exceptions to Infringement” is a prior use defense.
Implied Authorization
In addition to a patentee's express authorization to exploit a patent, there are also implied authorizations. An express authorization means that the patentee explicitly grants the licensee authorization to exploit the patent (in writing or orally) and therefore the licensee will not be held liable for infringement arising from exploitation. An implied authorization from a patentee means that, although there is no explicit statement, the patentee's words or actions may imply permission, leading others to believe they can exploit the patent without being accused of infringement. Implied authorizations from a patentee include an implied authorization produced from the sale of a patented product and an implied authorization based on prior use.
For product patents, where the patentees or their licensees sell not the patented product itself but rather related parts or components of the patented products, and these parts or components can only be used to manufacture the patented products and cannot be used for any other purpose, and meanwhile the patentees or their licensees do not explicitly impose restrictive conditions when selling these parts or components, it should be deemed that the purchasers have obtained an implied authorization to use these parts or components to manufacture and assemble the patented product, and their manufacturing and assembly activities do not constitute patent infringement.
For process patents, if the patentees or their licensees sell equipment or products that can only be used to exploit the patented processes, and meanwhile the patentees or their licensees do not explicitly impose restrictive conditions when selling these equipment or products, it should be deemed that the purchasers have obtained an implied authorization to exploit the patented processes.
To establish the existence of a patent implied authorization produced from the sale of parts or components, special equipment, or products, two conditions must be met:
first, the parts or components, special equipment, or products sold by the patentees or their licensees have no other use except for exploiting the patented technology; and
second, the patentees or their licensees do not explicitly impose restrictive conditions when selling the parts or components, special equipment, or products.
Seeking Administrative Relief
Where another party exploits a patent without the patentee's authorization, it is suspected of infringing the patent, against which the patentee or an interested party may request the patent administration authority to handle.
Jurisdiction
Cases of Significant nationwide impact
The CNIPA may, at the request of the patentee or an interested party, handle patent infringement disputes that have a significant impact nationwide. The following circumstances constitute patent infringement disputes that have a significant impact nationwide:
(1) involving major public interests;
(2) having a significant impact on industry development;
(3) major cases spanning provinces, autonomous regions, or municipalities directly under the Central Government;
(4) other circumstances that the CNIPA deems may have a significant impact.
Other Cases
Where a patentee or an interested party requests the CNIPA to handle a patent infringement dispute, and the dispute does not have a significant impact nationwide, the CNIPA may designate a local intellectual property department with jurisdiction to handle the dispute.
The patent administration authority of a province, an autonomous region, or a municipality directly under the Central Government may handle cases within its jurisdiction on the administrative adjudication and mediation of patent disputes with a significant impact involving foreign countries, Hong Kong, Macao or Taiwan, or involving two or more prefecture-level administrative regions where the infringement act is committed.
The patent administration authorities of prefecture-level cities, autonomous prefectures, leagues, regions, and municipalities directly under the Central Government, which have a large workload of patent administration and the actual handling capability, shall be responsible for handling cases on the administrative adjudication and mediation of patent disputes occurring within their respective jurisdictions.
The patent administration authority at a higher level may, according to the circumstances of a case, designate a patent administration authority at a lower level with jurisdiction to handle a patent dispute case.
The patent administration authority at a higher level may, according to the circumstances of a case, handle a patent dispute case that is originally under the jurisdiction of the patent administration authority at a lower level.
Venue
Where a party requests the handling or mediation of a patent infringement dispute, the patent administration authority of the respondent's location or the place where the infringement occurs shall have jurisdiction.
The place where the infringement occurs includes the place where the infringement act is committed and the place where the infringement result occurs.
Jurisdictional Conflict
In the event of a patent dispute over which two or more patent administration authorities have jurisdiction, the parties may submit a request to any of them. If a party submits a request to two or more patent administration authorities with jurisdiction, the patent administration authority that first accepts the case shall have jurisdiction.
Where a dispute arises over jurisdiction between patent administration authorities, the patent administration authority under their common higher-level people's government shall designate jurisdiction. If there is no patent administration authority under a common higher-level people's government, the CNIPA shall designate jurisdiction.
At the request of patentees or interested parties, the patent administration authority under the local people's government may consolidate cases involving infringement of the same patent within its administrative region. For cases involving infringement of the same patent across regions, the patent administration authority of the higher-level local people's government may be requested to handle the case.
Statute of limitations
The time limit for filing a request for an administrative adjudication on a patent infringement dispute shall be three years, calculated from the date the patentee or interested party knew or should have known the infringing act and the infringer.
Where a petitioner files a request for an administrative adjudication on a patent infringement dispute beyond the above time limit, if the alleged infringement is still ongoing at the time of filing the request and is within the validity period of the patent involved in the case, the patent administration authority shall accept the request.
Where an invention is exploited between the date of publication of the invention patent application and the date of patent grant and the appropriate fees are not paid, the statute of limitations for the patentee to request the appropriate fees is three years, calculated from the date on which the patentee knows or should have known that others are using his/its invention. However, if the patentee already knew or should have known before the grant of the patent, the statute of limitations is calculated from the date of grant of the patent.
Burden of Proof
Evidence is crucial to win lawsuits. Patentees or interested parties bear the burden of proof for their claims and must collect sufficient evidence to support their claims before submitting the requests with the patent administration authorities. Evidence collection is extremely vital, and patentees or interested parties can never attach too much importance to it.
Where a patent for an invention involves the manufacturing process of new products, if the patentees or interested parties provide evidence to prove that the products directly obtained through the patented process are new products and the alleged infringing products are the same as the products directly obtained through the patented process, the alleged infringer shall bear the burden of proof that the manufacturing process used by it is different from the patented process.
If a product or the technical solution for manufacturing a product was known to the domestic or international public before the filing date of a patent, the product is not a new product under the Patent Law.
Patent Evaluation Report
If a patent infringement dispute involves a utility model or design patent, a patent administration authority may require the patentee or interested party to provide a patent evaluation report prepared by the CNIPA after searching, analyzing, and evaluating the relevant utility model or design, as evidence in the handling of the patent infringement dispute. The patentee, interested party, or alleged infringer may also proactively provide a patent evaluation report.
If the patentee or interested party fails to submit such a report without justified reasons, the patent administration authority may not accept the request for handling the patent infringement dispute.
In practice, the patentee or interested party involved in the utility model/design patent infringement disputes will request and obtain patent evaluation reports from the CNIPA in advance of filing a request for handling the patent infringement dispute; these reports will be submitted to the patent administration authority at the time of filing the request for handling the patent infringement dispute.
Filing petitions
Petitioners
The petitioner can be the patentee or an interested party.
Interested parties include licensees under patent licenses and legal heirs to the patent. Among licensees under patent licenses, exclusive licensees can independently file a petition with the patent administration authority. Licensees under sole licenses can also independently file a petition if the patentee does not file the petition. Unless otherwise agreed in the contract, licensees under non-exclusive license cannot make a petition independently.
Documents to be filed
When requesting a patent administration authority to handle a patent infringement dispute, the patentee or interested party shall submit:
(1) a petition,
(2) valid patent certification (a copy of patent register or patent certificate and annual fee payment receipt for that year),
(3) the petitioner’s identity certification,
(4) evidence of infringement,
(5) a power of attorney and the agent’s identity certification (if an agent is appointed).
The petition should include basic information (name, address, contact information, legal representative’s or principal’s name and title) about the petitioner, the respondent and the agent, the clear requests, the facts, the grounds for action and necessary evidence.
Where the petitioner is a natural person, the identity certifications shall be his or her resident identity card or any other valid identity certificate. Where the petitioner is a legal person or an unincorporated organization, the identity certification shall be a duplicate of its valid business license or any other identity certification, and the identity certificate of its legal representative or principal.
Where the petitioner is a resident of the Hong Kong Special Administrative Region, the Macao Special Administrative Region, or the Taiwan Region of China, he or she shall submit his or her relevant identification and undergo relevant notarization formalities as required. If he or she refuses to provide such a certificate, the case shall not be accepted. If an agent is entrusted, relevant certification formalities shall be undergone for the power of attorney. The legal resident identification held in the mainland of China by residents of the Hong Kong Special Administrative Region, the Macao Special Administrative Region, or the Taiwan Region of China may be taken as an effective identification. The Mainland Travel Permit for Hong Kong and Macao Residents or the Mainland Travel Permit for Taiwan Residents may be taken as their identifications when they participate in administrative adjudication and mediation and observe oral hearings.
If the evidence and supporting materials submitted by the party are formed in the Hong Kong Special Administrative Region, the Macao Special Administrative Region, or the Taiwan Region of China, relevant certification formalities shall be undergone.
If the petitioner is a foreigner, his or her or its valid identification and the power of attorney shall be notarized by a notary office of the country where he or she or it resides and apostilled or legalized by the embassy or consulate of the People's Republic of China stationed in that country. If the foreigner refuses to provide the certificates, the case shall not be accepted. If certification formalities are otherwise prescribed in the relevant treaty concluded by the People's Republic of China, such provisions shall prevail.
A power of attorney signed within China, either in the presence of case handling personnel or notarized by a notary office of the People's Republic of China, shall be recognized. For a foreigner who has obtained permanent residence status in China, his or her identification for foreigners' permanent residence may serve as a valid identification.
If the evidence and supporting materials provided by the party are formed outside the territory of the People's Republic of China, their source shall be stated and they shall be notarized by a notary office of the country where they are formed and apostilled or legalized by the embassy or consulate of the People's Republic of China stationed in that country. If certification formalities are otherwise prescribed in the relevant treaties concluded by the People's Republic of China, such provisions shall prevail.
Where the petitioner is an interested party, they should submit relevant documentation, such as an exclusive or sole license contract, to prove their status as an interested party.
Where the patent infringement dispute involves a utility model or design patent, the patent administration authority may require the petitioner to provide a patent evaluation report issued by the CNIPA.
No Lawsuit or other Dispute Resolutions
Where a petitioner submits a request to the patent administration department for handling a dispute, it should not have filed a lawsuit in a court regarding the patent infringement dispute, and the parties should not have agreed on other dispute resolutions.
Docketing and acceptance
Where the documents submitted meet the relevant requirements, the patent administration authority will docket the case and issue a notice of acceptance to the petitioner. If the documents filed do not meet the requirements, the authority will make a ruling not to accept the case.
Transmitting the petition/response
After the patent administration authority formally dockets the case, it will send a copy of the petition to the respondent, and the respondent should submit a response within the specified time limit. If the respondent does not submit a response, it will not affect the the authority’s handling of the case.
Where the respondent submits a response, the authority will send its copy to the petitioner.
Investigation and Evidence Collection
During the handling of patent infringement disputes, if a party is unable to collect certain evidence on its own due to objective reasons, it may request in writing that the patent administration authority investigate and collect evidence. The patent administration authority will decide whether to investigate and collect relevant evidence based on the circumstances.
During the handling of patent infringement disputes or the investigation and punishment of patent counterfeiting/passing off, the patent administration authority may, as necessary and within its authority, investigate and collect relevant evidence.
To investigate and collect evidence, the patent administration authority may review and copy relevant documents such as contracts and account books related to the case; inquiry of parties and witnesses; and conduct on-site inspections using means such as measurement, photography, and videography. In cases of suspected infringement on a process patent, the patent administration authority may require the person under investigation to provide an on-site demonstration.
The patent administration authority may adopt sampling methods to investigate and collect evidence . In the case of product patents, a portion of the suspected infringing products may be taken as samples; in the case of process patents, a portion of the suspected products directly obtained by the process may be taken as samples. The number of samples collected shall be limited to the number that could prove the facts.
When handling patent infringement disputes at the request of the patentee or interested party, the patent administration authority may take the following measures:
(1) Inquire of the relevant parties and investigating the circumstances related to the suspected illegal acts;
(2) Conduct on-site inspections of the places where the parties are suspected of illegal acts;
(3) Inspect the products related to the suspected illegal acts.
When the authorities responsible for patent enforcement and for patent administration exercise their prescribed powers in accordance with the law, the parties shall provide assistance and cooperation and shall not refuse or obstruct.
Where the petitioner provides prima facie evidence proving that the other party holds the relevant evidence, the patent administration authority may order the other party to provide the relevant evidence in their possession. If the other party refuses to provide evidence without any justified reason or provides false evidence, the patent administration authority may determine that the claims made by the petitioner on the evidence are tenable.
Oral hearing
When handling patent infringement disputes, the patent administration authority may decide whether to hold an oral hearing based on the circumstances of the case. If the authority decides to hold an oral hearing, it shall notify the parties of the time and location at least three working days prior to the hearing. If the petitioner refuses to attend without justified reasons or withdraws from the hearing without permission, it shall be deemed that the petitioner has withdrawn their request; while if the respondent refuses to attend without justified reasons or withdraws from the hearing without permission, it shall be deemed that the respondent is in absentia.
When the authority holds an oral hearing, it shall record the participants and key points of the oral hearing in a written record, which shall be signed or stamped by the law enforcement officer and the participants after verification.
Suspension
Under any of the following circumstances, the patent administration authority shall suspend the handling of the cases upon requests by the relevant parties or according to its functions and powers:
(1) A request for declaring invalidation of a utility model or design patent involved in the case is made and the request is accepted by the CNIPA;
(2) A party is deceased and it is necessary to wait for the successor to indicate whether he or she will participate in the litigation;
(3) A party loses his or her capacity for civil conduct and his or her legal representative has not been determined;
(4) A legal person or an unincorporated organization as one of the parties is terminated, and the successor to its rights and obligations has not been determined;
(5) A party is unable to participate in the litigation for any force majeure;
(6) The case must be based on the result of the adjudication of another case which has not been concluded;
(7) It is indeed necessary to file a request with the authority at a higher level regarding issues on the application of law, among others, and the litigation may be continued only after a reply is given;
After the cause of suspension is eliminated, the handling of the case shall be resumed in a timely manner.
Non-Suspension
Under any of the following circumstances, the patent administration authority is not required to suspend the handling of the cases:
(1) The invention patent involved in the case is requested to be declared invalid during the case handling period;
(2) The patent evaluation report filed by the petitioner does not indicate any defect in the patent for a utility model or a design that fails to meet the conditions for granting a patent;
(3) The handling of the case is resumed after the petitioner withdraws the request for declaring invalidation, and then the petitioner files a new request for declaring invalidation and requests a suspension;
(4) A decision issued in the invalidation procedures to maintain the validity of the patent involved in the case has taken effect;
(5) Any other circumstance under which the patent administration authority deems it unnecessary to suspend the handling of the case.
Mediation
When handling patent infringement disputes, the authority may conduct mediation based on the parties' wishes. If both parties reach an agreement, the patent administration authority will prepare a mediation agreement, affix its official seal, and have both parties sign or seal it. If mediation fails, a decision on the resolution should be made promptly.
Handling Period
Patent administration authorities handling patent infringement disputes generally shall close the cases within three months from the date of docketing. If a case is complex and requires an extension of this period, approval must be obtained from the head of the patent administration authority. Such an extension may be granted for a maximum of one month. If the case is particularly complicated or there are other special circumstances, and the case cannot be closed after an extension, a further extension may be made with the approval of the patent administration authority at the next higher level, and an extension of not more than two months shall be determined at the same time.
Time spent on announcements, appraisals, and suspensions, extension requested by the parties for providing evidence and the reconciliation is not included in the case handling period mentioned above.
Decision
When handling cases involving the administrative adjudication on patent infringement disputes, the patent administration authority shall legally close the cases in a timely manner based on the investigation and finding of case facts. Based on the case handling results, the authority will conclude the cases in the following manners:
(1) Making an administrative adjudication: issuing a written administrative adjudication for a case involving patent infringement disputes;
(2) Concluding a case through mediation: making a mediation agreement on the patent infringement dispute where the parties enter into a mediation agreement;
(3) Dismissing a case: issuing a written decision to dismiss a case involving patent infringement disputes.
In the above (1) written administrative adjudication, the following shall be indicated:
- the names and addresses of the parties;
- the relevant facts and grounds presented by the parties;
- the legal ground and basis for determining whether the infringement is established;
- a specific order that the infringer shall immediately stop the infringement, indicating the type, object, and scope of the infringement, where it is determined that the infringement is established;
- the rejection of the request, where it is determined that the infringement is not established;
- how to file an administrative lawsuit and the time limit for doing so where the parties are dissatisfied with the administrative adjudication.
After the patent administration authority or the court has issued a decision or judgment finding infringement established and ordering the infringer to immediately cease the infringing acts, if the infringer again infringes the same patent, and the patentee or interested party files a request for handling, the patent administration authority may directly issue a decision ordering the immediate cessation of the infringing acts.
If the patent administration authority finds that a patent infringement has been established and makes a decision ordering the infringer to immediately stop the infringement, it shall take the following measures to stop the infringement:
(1) Where the infringer makes patent-infringing products, it shall be ordered to immediately stop making, destroy the special equipment and molds used to make the infringing products, and not to sell or offer to sell or use the unsold infringing products or put them on the market in any other way; if the infringing products are difficult to preserve, the infringer shall be ordered to destroy the products;
(2) Where the infringer uses a patented process without the authorization of the patentee, it shall be ordered to immediately stop using it, destroy the special equipment and molds used to implement the patented process, and not to sell or offer to sell or use the unsold infringing products directly obtained by the patented process or put them on the market in any other way; if the infringing products are difficult to preserve, the infringer shall be ordered to destroy the products;
(3) Where the infringer sells patent-infringing products or infringing products directly obtained by a patented process, it shall be ordered to immediately stop selling them, and not to offer to sell or use the unsold infringing products or put them on the market in any other way; if the unsold infringing products are difficult to preserve, the infringer shall be ordered to destroy the products;
(4) Where the infringer offers to sell patent-infringing products or infringing products directly obtained by a patented process, the infringer shall be ordered to immediately stop offering to sell, eliminate the impact, and not to conduct any actual sales acts;
(5) Where the infringer uses patent-infringing products for production or business purposes , the infringer shall be ordered to immediately cease the use of such products; where anyone uses patent-infringing products for production or business purposes without knowing that such products are manufactured and sold without the authorization of the patentee, if the user can provide evidence to prove the legal source of such products, the patent administration department shall support the rights holder's claims on ceasing the aforesaid use, except that the user of the alleged infringing products provides evidence to prove that it or he has paid a reasonable consideration for such products;
(6) Where the infringer imports patent-infringing products or infringing products directly obtained by a patented process, the infringer shall be ordered to immediately stop importing; if the infringing products have already entered the country, the infringer shall be order not to sell or use or put them on the market in any other way; if the infringing products are difficult to preserve, the infringer shall be ordered to destroy the products; if the infringing products have not yet entered the country, the decision on the handling may be notified to the relevant customs;
(7) Infringing exhibitors shall be ordered to take measures such as removing the infringing exhibits from the exhibition, destroying or sealing the relevant promotional materials, replacing or covering the relevant exhibition boards;
(8) Other necessary measures to stop the infringing acts.
Where the patent administration authority determines that patent infringement on an e-commerce platform is established and issues a decision, it shall notify the internet service provider, e-commerce platform operator to promptly take necessary measures such as deleting, blocking, disconnecting and terminating transactions and services on links to webpages related to patent-infringing products or infringing products directly obtained through patented processes, in order to stop the infringement by the business operators on the platform.
Where any of the parties is dissatisfied with the decision of the patent administration authority, it may file an administrative lawsuit with the court within 15 days of receiving the decision.
Where the respondent files an administrative lawsuit with the court, enforcement of the decision shall not be suspended during the litigation.
Where the respondent does not file an administrative lawsuit or cease the infringing acts after the expiration of the time limit, the patent administration authority may apply to the court for compulsory enforcement.
Compensation for Damages
Patentees or interested parties have the right to seek compensation for damages caused by patent infringement.
However, in administrative relief proceedings for handling patent infringement disputes, the patent administration authorities do not accept or handle the requests for compensation for damages.
Requests for compensation for damages can only be submitted to the court through civil litigation. Administrative relief proceedings can mediate disputes over compensation for damages.
Compensation Mediation
Parties involved in disputes over the compensation for damages due to patent infringement may request mediation from the patent administration authority.
Where, after mediation by the patent administration authority, the parties fail to reach an agreement or fail to perform the mediation agreement after it becomes effective, they may file a civil lawsuit in court.
Determination of Compensation
Basic Rules:
The compensation for damages in patent infringement shall be determined according to the actual losses suffered by the rights holder due to infringement or the profits earned by the infringer due to infringement. If the actual losses of the rights holder or the profits earned by the infringer are difficult to determine, the compensation shall be reasonably determined by referring to the multiples of the patent license fee (or the royalties).
The compensation for damages shall include the reasonable expenses paid by the rights holder to stop the infringement.
Malicious Infringement:
For intentional patent infringement, where the circumstances are serious, compensation may be determined in a range from one to five times the amount determined in accordance with the method described in the Basic Rules above.
Statutory Damages:
If it is difficult to determine the actual losses suffered by the rights holder due to the infringement, the profits earned by the infringer due to the infringement, and the patent license fees, the court may determine compensation of not less than CNY 30,000 but not more than CNY 5 million based on factors such as the type of patent, the nature of the infringement, and the circumstances.
Losses of Rights Holders:
The actual loss suffered by the rights holder refers to the loss of profits suffered by the patentee due to the infringing act of the infringer. If the rights holder fails to exploit the patented technology or patented design, the amount of compensation shall not be determined based on the actual loss of the rights holder. The actual loss suffered by the rights holder may be calculated by multiplying the total reduction of sales volume of the patentee's patented products due to infringement by the reasonable unit profit of the patented product. If the total reduction of sales volume of the patentee's patented products due to infringement cannot be determined, the actual loss may be determined based on the total number of infringing products sold in the market.
The reasonable unit profit of the patented product can be calculated based on the average profit earned from all the patented products sold, which is calculated by deducting production and sales costs from sales revenue and then dividing the remainder by the sales volume.
In determination of the actual loss suffered by the rights holder, the contribution of the patent to the overall product profit, the loss of sales of accessories and parts related to the patented product, and other factors should be considered. The market demand for the patented product, whether the rights holder has the production and marketing capabilities to meet this demand, whether the rights holder has the possibility of obtaining such profits, and whether there is a causal relationship between the infringing acts and the infringement results should also be considered.
Profits of Infringers:
The profits earned by the infringer refer to the profits directly gained by the infringer from infringing the patentee's patent. The profits shall be limited to those gained by the infringer from the patent infringement per se, while profits earned from other reasons shall be reasonably deducted. The profits gained by the infringer can be calculated by multiplying the number of infringing products sold in the market by the reasonable unit profit of the infringing product; or by multiplying the total sales of the infringing products by the operating profit margin for that period.
The reasonable unit profit of the infringing product is the average profit earned by the alleged infringer from all infringing products sold, which is calculated by deducting production and sales costs from sales revenue and then dividing the remainder by the sales volume. The reasonable unit profit of the infringing product can be calculated based on the infringer's average operating profit; for infringers whose primary business is infringing products, their average sales profits can be used.
The average operating profit is the difference between operating revenue and operating costs divided by sales volume. Operating costs generally include administrative fees, advertising fees, rent, etc. The average sales profit is the difference between sales revenue and sales costs divided by sales volume.
The operating profit margin is the operating profit divided by operating revenue. If the operating profit margin is difficult to determine, it can be calculated based on the typical profit margin for the industry or field.
The aforementioned profits, costs, expenses, sales volumes, etc. can be determined based on audit reports, consulting reports, or invoices. They can also be determined by reference to the purchase costs stated in the infringer's order contract and the sales price stated in the sales contract, or through evidence such as purchase orders and quotations.
When determining the infringer's profits, the patent's contribution to the overall product profits must also be considered, and profits gained by the infringer from factors unrelated to the infringement, such as advertising campaigns or market position, must be excluded. Administrative fees, advertising expenses, rental fees, and other expenses must be deducted from the infringer's total sales of the infringing products.
Multiples of the License Fees:
In determining the amount of compensation for infringement based on multiples of patent license fees, the amount of compensation is generally 1-3 times the patent license fees. In determining a reasonable multiple, factors such as the type of patent, the nature, scale, duration, and geographical scope of the infringement, and the nature, scope, duration, and license fees of the patent license, should be considered.
In cases of malicious infringement, repeated infringement, or serious infringement, the multiples of the patent license fee may be increased, as appropriate.
Determining statutory damages:
The amount of statutory damages can be determined by referring to the following approaches or factors:
Market Approach: The market value of the patented technology or design is assessed by using recent market prices of identical or similar patented technologies or designs, and combining with other relevant influencing factors.
Income Approach: If the patented technology or design has been commercially used, the compensation amount can be determined by estimating the proportion of revenue generated by the patented technology or design over the same period of operation.
Cost Approach: If the R&D costs of the patented technology or design can be determined, the compensation amount can be determined based on a reasonable proportion of those costs.
Other Factors: The potential actual losses of the rights holder or the potential gains of the infringer; the type and degree of innovation of the patent; the value of the patent; the circumstances of the infringement; the damages resulting from the infringement; the degree of subjective fault of the infringer; the role of the patented product as a part or component in the overall product; reasonable transfer fees and license fees for similar patents; whether the patent has undergone invalidation proceedings and remains valid; whether the patent is a basic or dependent patent; and whether there are alternative or newer products in the market.
Reasonable Expenses:
Where a rights holder claims reasonable expenses incurred to stop the infringement, these expenses should be calculated in addition to the amount of compensation determined by the Patent Law.
Reasonable expenses refer to the direct loss inevitably suffered by the rights holder in order to stop the infringement, which generally include notarization fee, investigation and evidence collection fee, transportation, accommodation and food expenses, lost wages, material printing fee, etc., and should not include indirect losses such as interest incurred during the period from the actual payment of the above expenses to the acquisition of compensation.
Lawful Source Exemption
Where a person uses, offers to sell, or sells a patent-infringing product for production or business purposes without knowing that the product was manufactured and sold without the patentee's authorization, he or she shall not be liable for compensation if he or she can prove the lawful source of the product.
When a rights holder issues a warning regarding patent infringement to another party, the warned party may, upon a written reminder, request the rights holder to file a request for administrative adjudication with the patent administration authority or file a lawsuit with a people's court, or the warned party may issue a written opinion of no infringement to the rights holder. Where the rights holder neither withdraws the warning nor files a request for administrative adjudication with the patent administration authority nor files a lawsuit with a people's court within one month of receiving the written reminder or no infringement opinion, or within two months from the date of issuance of the written reminder or no infringement opinion, the warned party may request the patent administration authority to issue an advisory opinion on whether the infringement is established.
Under the early resolution mechanism for drug patent disputes (also known as the drug patent linkage system), during the drug marketing review and approval process, if a dispute arises between a marketing authorization applicant and a patentee or an interested party regarding the patent associated with the drug under registration, the parties may, in addition to filing a lawsuit with the court, also request the patent administration authority to make an administrative ruling on whether the technical solutions associated with the drug under registration fall within the scope of the other person's drug patent.
Interested parties refer to patent licensees and relevant drug marketing authorization holders.
The State Council's drug regulatory department may, within a prescribed period, decide whether to suspend approval for the marketing of the relevant drug based on an effective judgment of a court or an administrative ruling by the patent administration authority.
If a party is dissatisfied with an administrative ruling made by the patent administration authority, it may, after receiving the written administrative ruling, file a lawsuit in accordance with the law in a court.
Administrative Handling of Patent Counterfeiting/Passing off
Anyone may file a complaint or report suspected patent counterfeiting/passing off to a patent administration authority.
Patent Counterfeiting/Passing off
The following acts constitute the aforementioned patent counterfeiting/passing off:
(1) marking a patent symbol on a product that has not been granted a patent, or the packaging of this product,
continuing to mark a patent symbol on a product after the patent has been declared invalid or terminated, or the packaging of this product, or
marking another person's patent number on a product or its packaging without authorization;
(2) selling the product described in item (1) above;
(3) in a specification or other materials about a product, indicating its technology or design that has not been granted a patent as a patented technology or patented design, indicating patent application as a patent, or using another person's patent number without authorization, thereby causing the public to mistakenly believe that the technology or design involved is a patented technology or patented design;
(4) forging or altering a patent certificate, patent documents, or patent application documents;
(5) other acts that confuse the public and cause them to mistakenly believe that a technology or design that has not been granted a patent is a patented technology or patented design.
Where a patent symbol is marked on a patented product, a product directly obtained by a patented process, or its packaging in accordance with the law before the expiration of the patent, offering to sell or selling such product after the expiration of the patent does not constitute patent counterfeiting/passing off.
Jurisdiction
The investigation and punishment of patent counterfeiting and passing off shall be under the jurisdiction of the patent administration authority in the place where the act occurs.
If a dispute arises over jurisdiction between patent administration authorities, the patent administration authority under their common higher-level people's government shall designate jurisdiction. If there is no patent administration authority under a common higher-level people's government, the CNIPA shall designate jurisdiction.
Docketing a case for investigation
If the patent administration authority discovers or receives a report or complaint that there is a suspected patent counterfeiting/passing off act, it shall docket a case and conduct an investigation.
Investigation and evidence collection
When the authority responsible for patent enforcement investigates and handles suspected patent counterfeiting/passing off acts based on the evidence already obtained, it shall have the right to take the following measures:
(1) Inquire of the relevant parties and investigate the circumstances related to the suspected illegal acts;
(2) Conduct on-site inspections of the places where the parties are suspected of committing illegal acts;
(3) Review and copy contracts, invoices, account books and other relevant materials related to the suspected illegal acts;
(4) Inspect products related to the suspected illegal acts;
(5) Seal or seize products that have been proved counterfeiting/passing off patents by evidence.
When the authorities responsible for patent enforcement and for patent administration exercise their prescribed powers in accordance with the law, the parties shall provide assistance and cooperation and shall not refuse or obstruct.
Result of the handling
When the investigation for a case is finished, with the approval of the head of the patent administration authority, the authority will make the following handling according to the circumstances of the case:
(1) If the patent counterfeiting/passing off behavior is established and should be punished, an administrative penalty shall be imposed in accordance with the law;
(2) If the patent counterfeiting/passing off behavior is minor and has been corrected promptly, no punishment will be imposed;
(3) If the patent counterfeiting/passing off behavior is not established, the case will be dismissed in accordance with the law;
(4) If the case is suspected of a crime, the case will be transferred to the public security organs in accordance with the law.
Notification before making a decision
Before the patent administration authority makes an administrative penalty decision, it shall inform the party concerned of the facts, reasons, and basis for the decision, and inform the party concerned of their legal rights.
Before the patent administration authority makes a decision imposing a substantial fine, it shall inform the party concerned of their right to request a hearing. If a party requests a hearing, a hearing shall be organized in accordance with the law.
Defense and Verification
The parties have the right to make statements and defenses, and the patent administration authority shall not increase administrative penalties due to the parties' defenses.
The patent administration authority shall verify the facts, reasons, and evidence presented by the parties. If the facts presented are authentic and the reasons are valid, the authority shall admit them.
Handling Period
The patent administration authority must close a patent counterfeiting/passing off case within one month from the date of docketing the case. If the case is particularly complex and requires an extension of the time limit, such extension shall be approved by the head of the patent administration authority. The maximum extension period granted shall not exceed 15 days.
Time spent on hearings, public announcements, and other matters during the case handling process shall not be counted into the handling period mentioned above.
Decision
If, after investigation, it is determined that patent counterfeiting/passing off is established and punishable, the patent administration authority shall prepare a written penalty decision, which shall include the evidence, reasons, and basis for determining the patent counterfeiting/passing off, the content of the penalty, and the way of compliance with the penalty order, as well as the procedures and time limits for applying for administrative reconsideration and filing an administrative lawsuit if the party concerned is dissatisfied with the penalty decision.
Compliance with the Decision
The person counterfeiting/passing off a patent must pay the fine specified in the penalty decision to a designated bank within 15 days of receiving the penalty decision. Failure to pay by the due date will result in an additional fine of 3% of the fine amount per day.
Where a patent counterfeiting/passing off is established, in addition to bearing civil liability in accordance with the law, the perpetrator shall also be ordered by the authority responsible for patent enforcement to correct the violation and make an announcement, and the authority may confiscate the illegal gains, and impose a fine of not more than five times the illegal gains; if there are no illegal gains or the illegal gains are not more than CNY 50,000, a fine of not more than CNY 250,000 may be imposed; if the act constitutes a crime, criminal liability shall be pursued in accordance with the law.
If the patent administration authority determines that the act of patent counterfeiting/passing off has been established, the illegal gains of the perpetrator may be determined in the following ways:
(1) If counterfeit patented products are sold, the illegal gains shall be calculated by multiplying the product sales price by the number of products sold;
(2) If the contract for patent counterfeiting/passing off is entered into, the illegal gains shall be the fees collected.
If the person sells products that are not known to be counterfeit patented products and can prove the legal source of the products, the authority responsible for patent enforcement at or above the county level shall order the person to stop selling the products.
If the patent administration authority determines that patent counterfeiting/passing off is established, it shall order the perpetrator to take the following corrective measures:
(1) If a patent symbol is marked on a product that has not been granted a patent or the packaging thereof, or
a patent symbol is still marked on a product or the packaging thereof after the relevant patent has been declared invalid or terminated, or
another person's patent number is marked on a product or its packaging without permission,
the perpetrator shall immediately stop the marking and remove the patent symbol from the unsold products or their packaging;
if the patent symbol on the product is difficult to remove, the product or its packaging shall be destroyed;
(2) If a person sells the product described in item (1) above, he/she shall immediately stop the sales;
(3) If a person, in materials abut a product such as a specification, indicates the technology or design that has not been granted a patent as a patented technology or patented design, or the relevant patent application as a patent, or uses another person's patent number without authorization, thereby causing the public to mistakenly believe that the technology or design involved is a patented technology or patented design, he/she shall immediately stop issuing the materials, destroy the materials that have not been issued, and eliminate the impact;
(4) If a person forges or alters a patent certificate, patent documents, or patent application documents, he/she shall stop immediately the forging or altering, destroy the forged or altered patent certificate, patent documents or patent application documents, and eliminate the impact;
(5) If an exhibitor displays a counterfeit patent exhibit in an exhibition, he shall be ordered to take exhibition withdrawal measures such as removing the counterfeit patent exhibits from the exhibition, destroying or sealing the relevant promotional materials, replacing or covering the relevant exhibition boards; and
(6) Other necessary corrective measures.
If the patent administration authority determines that patent counterfeiting/passing off on an e-commerce platform is established, it shall notify the e-commerce platform provider to promptly take measures such as deleting, blocking or disconnecting the relevant web pages of the counterfeit patented products.
After the patent administration authority makes a penalty decision, if the party applies for administrative reconsideration or files an administrative lawsuit with the court, the enforcement of the decision shall not be suspended during the administrative reconsideration or lawsuit.
Publication of Administrative Penalty Decisions
When a patent administration authority issues a decision determining patent infringement and ordering the infringer to immediately cease the infringement, or a decision determining patent counterfeiting/passing off and imposing a penalty, it shall publish the decision within 20 working days from the date of making the decision and promptly release enforcement information through government websites and other channels.
Other Administrative Penalties
If an applicant or patentee violates the following provisions, the authority responsible for patent enforcement at or above the county level shall give a warning and may impose a fine of no more than CNY 100,000:
(1) Patent applications shall be made in accordance with the principle of good faith；
Each type of patent applications to be filed shall be based on genuine invention and creation activities and shall not be based on fraud; and
(2) Patentees shall not make open license declarations or obtain patent annual fee reductions during the implementation period of open licenses by providing false materials, concealing facts, etc.
If a patent symbol is not marked in the manner prescribed by the CNIPA, the authority responsible for patent enforcement at or above the county level shall order rectification.
Other Administrative Mediations
In addition to handling patent infringement disputes, a patent administration authority may, upon request of the parties, mediate the following patent disputes:
(1) disputes over the right to apply for a patent and the ownership of patent;
(2) disputes over the qualifications of inventors and designers;
(3) disputes over rewards and remuneration to inventors and designers of service inventions;
(4) disputes over the use of an invention after the publication of an invention patent application but before the grant of the patent without paying appropriate fees;
(5) other patent disputes.
For the disputes listed in item (4) above, if the parties request the patent administrative authority to mediate, the request should be made after the patent is granted.
Mediation cases involving other patent disputes shall be handled by the patent administration authority at the respondent's place of residence.
Where the petitioner fails to participate in the mediation at the time and place specified in the notice without any justified reason, the patent administration authority shall handle the case as if the petitioner has voluntarily withdrawn its or his request. If the alleged infringer fails to participate in the mediation at the time and place specified in the notice without any justified reason, the patent administration authority shall handle it as if no agreement has been reached, close the case by dismissing it, and notify both parties.
Where the parties reach an agreement through mediation, the patent administration authority shall prepare a mediation agreement and affix its official seal thereto, and both parties shall also affix the signature or seal to the mediation agreement; and if the parties fail to reach an agreement, the patent administration authority shall close the case by dismissing it and notify both parties.
Dissatisfaction with Decisions
Administrative Reconsideration
If a party is dissatisfied with a patent infringement decision made by an administrative authority, or with other administrative penalty decisions, they may apply for administrative reconsideration to the higher-level administrative authority. If the party remains dissatisfied with the reconsideration decision, they may file an administrative lawsuit with the court.
Administrative Litigation
If a party is dissatisfied with a patent infringement decision made by an administrative authority, or with other administrative penalty decisions, they may directly file an administrative lawsuit with the court.
If a party applies for administrative reconsideration to a higher-level administrative authority and remains dissatisfied with the reconsideration decision, they may file an administrative lawsuit with the court.
If you have any question about the protection of intellectual property rights, please feel free to send us emails. For patent-related matters, please send to info@afdip.com. For trademark/litigation/legal matters, please send to info@bhtdlaw.com.
patent enforcement, administrative relief, patent infringement, administrative enforcement, administrative action, administrative adjudication
