CHINA Law and Practice Contributed by: Binxin Li, Guangzhen Shang, Yue He and Lesley Wang, LeanWill Law Firm
Appeal of Patent Validity In patent invalidation cases, a party dissatisfied with the CNIPA’s invalidation decision may file a lawsuit with the Beijing IP Court within three months of receiving such decision. The court may currently hold a hearing around six months after docketing, and conclude the case around another six months afterwards. The court usually only reviews the grounds raised by the plaintiff. Judgments may uphold, annul or partially annul the CNIPA decision. If dissatisfied with the first instance judgment, a party may appeal to the Supreme Peo ‑ ple’s Court within 15 days of service of the judgment. If still dissatisfied with the appellate judgment, the The panel handling an appeal must be composed solely of judges, who may or may not have techni ‑ cal backgrounds. The court may engage a technical investigation officer to address the technical issues of a case. 7.3 Special Provisions IP litigation is governed by several judicial interpreta ‑ tions, including: • Provisions on Several Issues Concerning the Intel ‑ lectual Property Court; • Provisions on Evidence in Civil Procedures Involv ‑ ing Intellectual Property Rights; • Provisions on Issues Concerning the Application of Law in Cases Involving the Review of Preliminary Injunctions in Intellectual Property Disputes; • Provisions on Trials Concerning Patent Examina ‑ tion; party may apply for a retrial. 7.2 Appeal Court(s) Arbiter • Provisions on Issues Concerning the Application of Law in the Trial of Civil Cases Involving Trade Secrets Misappropriation; • Provisions on Issues Concerning the Participation of Technical Investigators in the Litigation Activities of Intellectual Property Cases; • Provisions on Trials Concerning Trade Mark Exami ‑ nation; • Interpretations on the Application of Punitive Compensation in the Trial of Civil Cases Involving Infringement of Intellectual Property Rights;
• Interpretations on Issues Concerning the Appli ‑ cation of Law in the Trial of Patent Infringement Disputes; • Interpretations on Issues Concerning the Applica ‑ tion of Law in the Trial of Monopoly Civil Disputes; • Interpretations on Issues Concerning the Applica ‑ tion of Law in the Trial of Copyright Civil Disputes; • Interpretations on Issues Concerning the Applica ‑ tion of Law in the Trial of Trade Mark Civil Disputes; • Interpretation on Property Preservation of Regis ‑ tered Trade Mark Rights; • Interpretation on Issues Concerning the Application of Law in the Trial of Civil Disputes Involving the Protection of Well-known Trade Marks; and • Interpretation on Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Infringements upon Intellectual Property Rights. 8. Other Relevant Forums/Procedures 8.1 The UPC or Other Forums For the protection of pharmaceutical patents, in addi ‑ tion to filing a civil lawsuit in court or requesting an administrative adjudication from an IP Office, paten ‑ tees may also ask Customs to cease the import or export of infringing goods in China. Under the Regulations on Customs Protection of Intel ‑ lectual Property Rights, where a patentee has record ‑ ed its patent with Customs, it may submit an applica ‑ tion for the detention of alleged infringing goods with a bond. Customs may then grant such application after reviewing the application at the ports. Customs may also proactively examine the goods to be imported or exported in light of the infringement and notify the pat ‑ entee, although this situation is rare. After the deten ‑ tion, the patentee shall file a lawsuit with the court and seek a court order for continuous Customs detention. The operation of the EU’s Unified Patent Court has little impact on life sciences and pharma IP litigation in China, but it could bring certain intervention or con ‑ flicts in cross-border IP disputes in the future.
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