CHINA Law and Practice Contributed by: Binxin Li, Guangzhen Shang, Yue He and Lesley Wang, LeanWill Law Firm
LeanWill Law Firm Unit 902, Tower A, Dawning Center 500 Hongbaoshi Road Changning District Shanghai 20110 P. R. China Tel: +86 21 60710709
Email: mail@leanwill.com Web: www.leanwill.com
1. Life Sciences and Pharma/ Biopharma Patent Litigation 1.1 Claimants/Plaintiffs to an Action
A patent can be attacked through an invalidation action, which any individual or entity may initiate before the CNIPA. In practice, the petitioner is usually the alleged infringer, a competitor or anyone else with a commercial stake in the right. Filing an invalidation in the name of a “strawman” used to be quite com ‑ mon in practice, but the CNIPA has started to curb the “strawman” approach in patent invalidation cases. In a recent invalidation decision in the pharma industry (4W119452), issued by the CNIPA on 15 November 2025, the CNIPA dismissed the invalidation petition filed by an individual named Tailing Wang (ie, a straw ‑ man) based on the reasoning that such action does not reflect the true legal intention of said individual. Differing from patent invalidation, qualified petitioners in trade mark opposition and invalidation proceedings vary in accordance with the legal basis on which the opposition or invalidation is filed, as follows: • any individual or entity is entitled to file an opposi ‑ tion or invalidation against a disputed mark based on the “absolute grounds” (ie, concerning public interest or statutory prohibitions, such as deceptive or misleading marks); and • only the prior right-holder or a party of interest may file an opposition or invalidation based on the “relative grounds”, such as conflicts with prior marks or other prior rights. 1.2 Defendants/Other Parties to an Action In patent infringement disputes, any individual or entity who exploits the patent without authorisation, for commercial purposes, can be listed as a defend ‑
Only an IP owner or licensee has the standing as plaintiff to sue. An exclusive licensee can sue inde ‑ pendently; a sole licensee may file a suit on its own if the IP owner chooses not to sue in writing; and a non- exclusive licensee can litigate alone only with the IP owner’s authorisation and waiver of its suing right. An IP owner cannot solely authorise a third party rather than a licensee to sue under such party’s own name. Recordal with the China National Intellectual Prop ‑ erty Administration (CNIPA) is not a pre-condition for a licensee to sue; nevertheless, when an infringement action is brought by a licensee, proof of standing is required, and a recordal certificate would be an easy way to prove it. In the pharmaceutical sector, plaintiffs are usually IP owners, market approval holders or manufacturers. In principle, when a registered IP right is co-owned, all owners should be listed as co-plaintiffs. If one co- owner files a lawsuit, the other co-owners should be listed as co-plaintiffs unless they expressly waive their suing rights. In practice, co-owners can authorise any one of them to sue, or waive their suing rights in writ ‑ ing for the other co-owners to bring the action. As an exception, in administrative cases raised from a pat ‑ ent invalidation decision, one co-owner is allowed to defend the co-owned IP alone.
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