CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
5.3 Discretion to Award Injunctive Relief (Final or Preliminary) A Chinese court does have the discretion to award damages instead of an injunction. According to the Provisions of the Supreme Peo - ple’s Court on Several Issues Concerning the Application of Law to the Review of Intellectual Property Dispute Preservation Cases, the court considers factors such as proportionality and/ or public interest when deciding on an injunc - tion. This principle holds true in life sciences and pharmaceutical patent litigation cases. Additionally, the Interpretation of the Supreme People’s Court on Several Issues Concern - ing the Application of Law in the Trial of Patent Infringement Disputes stipulates that, consider - ing national and public interests, the court may order the defendant not to cease the alleged infringement but rather to pay appropriate, rea - sonable fees. 5.4 Damages In China, methods of calculating damages include considering the following: • the actual loss suffered by the right-holder due to the infringement; • the benefits obtained by the infringer from the infringement; • where it is difficult to determine both the above, the damages shall be reasonably determined by reference to the multiple of the royalty; or • where it is difficult to determine all three of the above, the court can determine discre - tionary damages as not less than CNY30,000 and not more than CNY5 million. The methods are electable by the plaintiff.
As previously noted, the patentee must fur - nish a bond for a preliminary injunction, with the court determining the amount at its discre - tion. The patentee is obligated to file litigation or arbitration within 30 days of enforcement, and no further actions are required to enforce or sustain the injunction. However, the injunction typically remains in force only until the judgment or awarding of the litigation or arbitration takes effect. Lastly, there is no provision for staying a prelimi - nary injunction pending appeal in China. 5.2 Final Injunctive Relief In China, a prevailing plaintiff receives a final judgment that includes a final injunction direct - ing the defendant to cease and desist from any infringement. Final judgments are served using the same procedural steps as civil complaints, typically through mail to representative lawyers. If the infringer fails to comply with the judg - ment’s obligations, the enforcement procedure involves initiating enforcement, either by the pat - entee or the court, within six months of receiving the application. The completion of enforcement does not have a specific time limit. The applica - tion for enforcement can be made within two years from the last day of the designated period for performing the obligation in the judgment. Unlike preliminary injunctions, the patentee is not required to provide a bond or prepay enforcement fees before initiating enforcement proceedings for a final judgment in China. In very rare circumstances, such as when the underlying judgment is under retrial, the enforce - ment proceeding may be stayed.
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