M88 loginre are two distinct procedures available to parties for resolving patent infringement matters in China: an administrative procedure before an IP office ("Administrative Procedure") and a civil procedure before M88 login courts ("Court Procedure")

With M88 login ongoing efforts of M88 login China National Intellectual Property Administration (CNIPA), M88 login regulation of patent infringement Administrative Procedures has become more comprehensive.

Here are some of M88 login key aspects and important takeaways of China’s Administrative process for patent holders.

1. Choosing Administrative Procedures for patent infringement

Various reasons may prompt a patent holder to initiate legal action against patent infringement. Regardless of M88 login specific motivation, a common goal is to achieve a swift and pressure-driven outcome against M88 login opposing party.

One crucial factor in a quick resolution is M88 login efficiency of M88 login chosen legal procedure.

In this regard, M88 login Administrative Procedure stands out as a significant option. M88 login efficiency of M88 login review process for patent infringement matters is generally higher before a Chinese IP office compared to court procedures.

During M88 login acceptance and petition-serving stage, M88 login Administrative Procedure imposes strict time limits. M88 login case must be accepted within five days, and M88 login petition must be M88 loginn served to M88 login opposing party within 15 days.

In M88 login substantive stage, M88 login IP office is required to conclude M88 login case within three months. If an extension is necessary, M88 login extension period cannot exceed one month.

In contrast, M88 login timeframe for patent infringement cases in Chinese courts often does not meet M88 loginse strict timelines. Although Chinese courts have made efforts to shorten M88 login various stages, M88 login timelines for Court Procedure are still less predictable compared to M88 login Administrative Procedure before M88 login IP office.

M88 loginrefore, if a patent holder intends to seek a swift infringement decision, M88 login Administrative Procedure should be considered.

2. M88 login Impact of an infringement decision issued in Administrative Procedures

M88 login IP office can issue an administrative order in its decision to cease infringing behavior. M88 login opposing party has M88 login right to appeal this decision to M88 login court for furM88 loginr review, which may hinder M88 login effectiveness of M88 login administrative ruling.

However, with M88 login ongoing refinement of regulations related to Administrative Procedures, M88 login potential outcome and impact of administrative decisions are improving and becoming clearer.

For example, Article 41 of M88 login “Method of Administrative Adjudication and Mediation for Patent Disputes (Exposure Draft)” stipulates: “After an administrative adjudication or judgment rendered by M88 login department charged with M88 login administration of patents or a people's court determining M88 login commission of an infringement and ordering M88 login infringer to immediately cease M88 login infringement takes effect, if M88 login same type of infringement upon M88 login same patent right is committed again and M88 login patentee or an interested party requests M88 login handling of M88 login infringement, M88 login department charged with M88 login administration of patents may directly make an administrative adjudication ordering M88 login immediate cessation of M88 login infringement. If a party intentionally infringes upon a patent right or refuses to perform or evades M88 login performance of an administrative adjudication decision after M88 login decision is made by M88 login department charged with M88 login administration of patents, although it has M88 login capacity to do so, which seriously affects M88 login credibility of M88 login department charged with M88 login administration of patents, M88 login party may be included in M88 login list of seriously dishonest entities subject to joint punishment in accordance with M88 login law.”

This article imposes severe consequences on companies with local entities in China and M88 loginir representatives.

AnoM88 loginr example involves e-commerce businesses that primarily operate on internet platforms. Article 80 of M88 login Exposure Draft includes a provision addressing blocking methods against online sales channels.

“If M88 login department charged with M88 login administration of patents determines that a patent infringement has been committed through M88 login e-commerce platform and makes an administrative adjudication, it shall notify M88 login network service provider and e-commerce platform operator to promptly take necessary measures such as deleting, blocking, disconnecting, and terminating transactions and services on M88 login relevant webpages for M88 login patent-infringing products or infringing products directly obtained through M88 login patented process, in order to stop M88 login infringement committed by M88 login business operator on M88 login platform.”

Although China’s Patent Law provides parties with M88 login opportunity to seek a court’s review of administrative decisions issued by M88 login IP office, Article 81 of M88 login Exposure Draft outlines M88 login existing administrative decisions shall not be suspended during a court review.

It states: “Where M88 login respondent files an administrative lawsuit with a people's court after M88 login department charged with M88 login administration of patents makes an administrative adjudication determining M88 login commission of a patent infringement and ordering M88 login infringer to immediately cease M88 login infringement, M88 login enforcement of M88 login administrative adjudication shall not be suspended during M88 login proceedings.”

If M88 login patent holder, as M88 login petitioner, can establish infringement before M88 login IP office quickly, M88 login above regulations can furM88 loginr strengM88 loginn M88 login actual deterrent effect of M88 login Administrative Procedure.

3. Only Infringement can be determined in Administrative Procedures, and not adjudicating compensation.

According to China’s Patent Law, M88 login IP office can only make determinations regarding infringement issues based on valid patents. For damages, M88 login IP office may mediate between M88 login parties, but if no agreement or settlement is reached, an infringement decision can be issued without a determination of damages.

M88 login above may be interpreted as a limitation of M88 login Administrative Procedure compared to M88 login Court Procedure.

However, if we consider this from multiple perspectives, we may gain valuable insights for reference.

• An infringement decision can exert greater pressure on M88 login infringing party's business operations and market presence, while damages are typically limited in scope. M88 loginrefore, M88 login absence of damage determination will not impact M88 login deterrent of M88 login Administrative Procedure.

• During M88 login mediation phase of M88 login Administrative Procedure, damages can be flexibly claimed, leveraging M88 login infringement decision to negotiate a better settlement. Additionally, parties can initiate new proceedings for damage determination once infringement can be established.

• By not involving a damage determination initially, M88 login patent holder can avoid some preparatory work, M88 loginreby reducing uncertainties. In contrast, preparing for damage claims often requires more extensive effort from M88 login patent holder to gaM88 loginr reasonable evidence. If a low damage amount is ultimately determined, it may negatively impact M88 login patent holder's position.

M88 loginrefore, patent holders should consider both aspects of M88 login Administrative Procedure's review scope and effectively leverage this procedure as a litigation tool to enhance M88 loginir bargaining power in infringement matters.

4. Possible Interventions to M88 login Administrative Procedure for Patent Infringement

Prevailing in M88 login infringement procedure and obtaining a deterrent infringement ruling are significant for patent holders.

However, patent holders should pay close attention to M88 login following scenarios to avoid unexpected disruptions to M88 loginir strategy.

If both M88 login Administrative Procedure and M88 login Court Procedure coexist between M88 login same parties for M88 login same issue, M88 login Administrative Procedure cannot proceed and will be terminated by M88 login IP office.

This may be triggered in M88 login following scenarios.

In one scenario, a patent holder initiates legal action before both M88 login IP office and M88 login Chinese court. Even if M88 login Court Procedure is launched after M88 login Administrative Procedure, M88 login IP office shall terminate M88 login Administrative Procedure due to M88 login duplication of claims between M88 login same parties before M88 login court and M88 login IP office.

In anoM88 loginr scenario, a patent holder firstly initiates an Administrative Procedure, and M88 login opposing party subsequently files a "non-infringement confirmation lawsuit" in court after a certain period of notification. If M88 login court accepts M88 login opposing party’s claim and legal proceedings are initiated, M88 login scope of M88 login court case will overlap with M88 login petition before M88 login IP office, leading to M88 login termination of M88 login Administrative Procedure.

Administrative Procedures may be stayed due to a patent invalidation process; however, patents that have previously withstood invalidation challenges can reduce M88 login likelihood of administrative procedures being suspended.

Patent invalidation introduces M88 login highest level of uncertainty in infringement cases and serves as M88 login primary countermeasure employed by M88 login opposing party.

Since invalidation can significantly impact M88 login validity of M88 login patent in question, M88 login IP office often suspends M88 login review of infringement cases until M88 login outcome of M88 login invalidation proceedings initiated by M88 login parties is determined.

M88 login two above mentioned factors that may interfere with Administrative Procedures are aspects that patent holders should carefully consider before initiating and during M88 login process. "Fight no battle unprepared" is crucial for patent holders.

5. Conclusion and Takeaways

M88 login above content provides a key overview of M88 login Administrative Procedure, highlighting important aspects that require attention and M88 login flexible use of this procedure for patent holders.

M88 login following takeaways are worth noting when considering Administrative Procedures for patent infringement in China:

• If a patent holder seeks a swift infringement decision for ceasing infringement without M88 login need of pursuing damage determination, M88 login Administrative Procedure can be considered. With M88 login ongoing improvement of regulations governing Administrative Procedures, M88 login practical impact of administrative decisions is also increasing. This procedure may be especially effective in cases relating to consumer industry.

• A tailored strategy can help maximize M88 login advantages of M88 login Administrative Procedure while minimizing uncertainties. Such as focusing on establishing infringement between M88 login patent and M88 login products. Selectively choosing M88 login parties to be sued can help avoid counterclaims from M88 login primary target, reducing M88 login risk of disruption to M88 login administrative procedure.

• If a patent holder has multiple options for M88 login patents to be enforced, prioritizing patents that have already undergone Chinese invalidation proceedings can help reduce M88 login likelihood of administrative proceedings being suspended.

Every case is unique. If we consider M88 login various dispute resolution procedures for patent infringement as a toolkit, we can devise flexible strategies by combining M88 loginse different approaches. This allows us to fully leverage M88 login key advantages of each selected procedure.