—-Introduction of the Jurisdiction System of Patent Litigation in China
Highlights: Introducing the jurisdiction system of patent litigation in China, including the territory jurisdiction and jurisdiction by forum level of the patent civil and administrative litigation involving inventions, utility models and design.
Recently, the Supreme People’s Court has approved the Beijing Haidian District People’s Court (the “Haidian Court”) as a pilot to hear patent cases, thereafter the Haidian Court becomes the fist primary people’s court with jurisdiction over patent cases in China.
According to the approval of the Supreme People’s Court, now the Haidian Court, as a court of the first instance Court, is entitled to hear nine categories of patent disputes of which the amount of the object of litigation shall be no more than 5 million, or more than 5 million but no more than 10 million and the domiciles of the parties concerned are both in Beijing. The aforesaid nine categories of patent disputes refer to utility models and designs patent; patent infringement; counterfeiting the patent of others; the award, remuneration for the inventor, designer of job-related inventions-creations; application for stopping an infringement or for property reservation before the action begins; the qualification of the investor and the designer.
There are many high technology enterprises such as the Sina, Sohu,Netease, Tencent in and around the Zhongguancun area, Haidian District, Beijing, and disputes often arises among such enterprises due to the fierce market competition. Hence, the cases accepted by the Haidian Court always involve various new intellectual properties disputes which have never happened in China. It is not surprising that the Supreme People’s Court approves Haidian Court to accept the patent cases, but it reflects the developed judgment ability of China’s jurisdiction system in intellectual property cases, and now the primary courts are able to try the patent cases with higher technology.
Certainly, in China, it is common the intermediate people’s court shall be the courts with jurisdiction over patent cases when the foreign enterprises and individuals participate in litigation of patent disputes. And till now there are almost eighty (80) Intermediate People’s Court has jurisdiction over patent cases. Today we will introduce the jurisdiction over patent cases, including jurisdiction by forum level and territorial jurisdiction, in accordance with the current Chinese laws and regulations.
1. Categories of patent disputes
According to the Patent Law of People’s Republic of China, and the Several Provisions of the Supreme People’s Court on Issues Concerning Applicable Laws to the Trial of Patent Disputes（the “Several Provisions”）, the people’s court shall accept the patent disputes including the disputes over the right to apply for a patent, the disputes over the ownership of patent right; the dispute over the contract for assignment of patent right and of the right to apply for a patent; the dispute over infringement of patent right; the dispute over counterfeiting the patent of others; the dispute over the exploiting fees after the application for the patent for invention is promulgated and before the patent right is granted; the dispute over the award, remuneration for the inventor, designer of job-related inventions-creations; the dispute over application for stopping an infringement or for property reservation before the action begins; the dispute over the qualification of the investor and the designer; and cases of protest against the decision of the patent reexamination board to sustain the decision about rejecting the application for a review and on the request for declaration of invalidation of the patent right; case of protest against the administrative department of patent under the State Council ‘s decision of administrative decision, decision to enforce the coercive permission and decision to the exploiting fee of a coercive permission and ; cases of protest against the administrative decision of the departments in charge of patent; and other patent disputes.
2. Jurisdiction by forum level and territorial jurisdiction
According to the Several Provisions, the first instance case of patent disputes shall be, except for the Haidian Court, under the jurisdiction of the intermediate people’s courts of the places where the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government are located, and of the intermediate people’s courts appointed by the Supreme People’s Court. However, it needs notice that not all the Intermediate People’s Courts in China have jurisdiction over patent cases, so welcome to contract with us if you want to know which people’s court in China has jurisdiction over the patent dispute you incur.
An action brought against a patent infringement shall be under the jurisdiction of the people’s court at the place where the infringement is committed or where the defendant has his domicile. The place where the infringement is committed includes the following places where the infringement is carried out and the consequence of infringement occurs:
(1) The place where a product alleged to be infringing a patent right for invention or utility model is manufactured, used, offered for sale, sold, imported, etc.;
(2) The place where a patented process is used or the place where a product directly obtained by the patented process is used, offered for sale, sold, imported, etc;
(3) The place where a product incorporating the patented exterior design is manufactured, sold, imported, etc;
(4) The place where another’s patent is passed off; and
(5) The place where the consequence of the above-mentioned acts of infringement occurs.
In addition, to the production and sell of infringing products, if the patentee brings an action only against the manufacturers and not against the seller, of an infringing product and the places where the infringing product is manufactured and sold are different, the people’s court at the place where the product is manufactured shall have the jurisdiction; if the plaintiff files and action, with the with the manufacturer and the seller as co-defendants, the people’s court at the place where the product is sold shall have jurisdiction. If the seller is a branch of the manufacturer and the plaintiff files an action at the place where the infringing product is sold against the manufacturer’s manufacture and sale thereof, the people’s court at the place where the product is sold shall have jurisdiction.
3. The statute of limitation of patent cases
The foreign enterprise and individuals shall clearly know that the statute of limitation of patent infringement in China is two (2) years from the day when the patentee or interested party knows about or should have known about the infringement in order to avoid the expiration of the statute of limitation cause failure of claims for remedies. However, if the patentees file an action after the expiration of the statute of limitation, meanwhile the infringement continues and the said patent is still valid, then the people’s court shall make a judgment to order the defendant to cease the infringement act, but the compensation amount for the infringement shall be calculated from two (2) years before the date when the patentee file the action with the people’s court.
Author: Ms. Chen Danhong
Paralegal of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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