CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
ruling on the respondent no later than five days after implementing said measures. The court, relying on the applicant’s submission, may decide on granting a preliminary injunc - tion, occasionally notifying the alleged infringer post-implementation of preservation measures and thereby limiting their chance to present evi - dence during the court review. Nevertheless, the alleged infringer retains the right to apply to the same court for the reconsideration of the pre - liminary injunction post-decision. In instances of preservation errors, a claim for damages is permissible. Notably, Chinese law lacks a “protective letter” doctrine akin to that in Europe. However, as pre - viously mentioned, the alleged infringer can seek reconsideration of the preliminary injunction rul - ing, affording them the opportunity to pursue compensation for any inaccuracies in the appli - cation process. 1.4 Structure of Main Proceedings on Infringement/Validity Infringement and Validity Proceedings In China, patent infringement and validity pro - ceedings follow a bifurcated structure. Patent infringement matters are adjudicated through litigation processes before the civil court, while patent invalidation procedures are submitted to the CNIPA via administrative channels. In cases where the defendant requests to chal - lenge the validity of a patent during the defence period in a dispute involving the infringement of an invention patent accepted by the court, or in a dispute concerning the infringement of a utility model or design patent that has been reviewed and upheld by the CNIPA, the court may proceed with the litigation without suspen - sion. It is noteworthy that the patent invalidity
examination typically takes approximately eight months, which is far less than the time period of a civil infringement lawsuit. Consequently, by the time the court renders a judgment, the CNIPA’s examination decision is usually already concluded. Nullity Proceedings In China, a nullity proceeding can only be filed against a patent after it has been granted by the CNIPA. 1.5 Timing for Main Proceedings on Infringement/Validity Proceedings Regarding the Infringement Case The statutory timeframe for initiating legal action against patent infringement spans three years, commencing from the date when the patentee or interested party becomes aware or should have reasonably become aware of the infringement and the infringer. In the course of an infringement proceeding, the court is responsible for serving the complaint to the alleged infringer. Within five days of docket - ing a case, the court is obliged to provide the defendant with a copy of the written complaint. The date affixed to the service acknowledgment by the recipient signifies the official date of ser - vice. Electronic means, such as email or SMS, are now widely used in China for court’s service. Following receipt, the defendant must submit a written statement of defence within 15 days. For parties without domicile within the territory of the PRC, the court may employ special methods, such as service based on international treaties, diplomatic channels or other legally specified manners. In practical terms, the initial judgment in the first instance typically takes between one year and
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