CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
5. Relief Available for Patent Infringement 5.1 Preliminary Injunctive Relief
Additionally, another patent term extension scheme is provided in Article 42.2 of the Pat - ent Law, which is available for all invention pat - ents and mainly applies to circumstances where there is unreasonable delay in the patent grant procedure. According to this provision, patents eligible for extension include invention patents granted four years from the application filing date and three years from the date of filing the request for substantial examination. In such cir - cumstance, the patent administrative depart - ment of the State Council shall, at the request of the patentee, provide patent term extension for unreasonable delay in the patenting process for the invention, except for unreasonable delay caused by the applicant. 4.2 Paediatric Extensions To date, there have been no special rules for pae - diatric extensions, though this can be included in the patent term extension scheme. 4.3 Paediatric-Use Marketing Authorisations To date, there has been no special rule for paedi - atric-use authorisation similar to PUMA in China. 4.4 Orphan Medicines Extensions In the draft revision of the Implementation Regulations of the Drug Administration Law of the PRC for public comments, Article 29 sug - gests an up to seven-year market exclusivity for new orphan drugs. That said, the newly revised Implementation Regulations of the Drug Admin - istration Law issued in December 2024 has not adopted the aforesaid draft provision.
Firstly, the PRC’s Civil Procedure Law man - dates that a plaintiff is required to post a bond when applying for a preliminary injunction. The bond serves the purpose of compensating the adversely affected party if the preliminary injunction is erroneously granted and enforced. In practice, plaintiffs often secure an insurance policy instead of the bond, with assistance from an insurance company. Preliminary injunctions become enforceable upon issuance of decisions. The courts follow the same procedural steps for serving prelimi - nary injunction orders as they do for civil com - plaints. In China, enforcing preliminary injunctions mir - rors the process of enforcing judgments. Non- compliance by the affected party prompts the court to enforce it compulsorily. The primary procedures for preliminary injunc - tions encompass: • the application (when initiated by the appli - cant rather than at the court’s discretion); • court decision;
• decision enforcement; • decision review; and • injunction termination.
Generally, a court should render a decision with - in 48 hours of the application. Enforcement fol - lows immediately, and if the applicant does not initiate litigation or arbitration within 30 days, the court may terminate the injunction.
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