CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
mally request recovery, specifying the amount and providing supporting documents such as invoices. In the case of a favourable judgment for the plaintiff, where the defendant is held responsible for patent infringement, the court will order com - pensation for the plaintiff’s justifiable legal costs. Interim payment orders are rarely issued in Chi - nese litigation, making this practice uncommon. The court has discretionary authority to award legal costs either in full or in part, considering the reasonableness of the amount claimed and the adequacy of supporting evidence. Distinct from legal costs, court fees in Chinese litiga - tion are the plaintiff’s responsibility and must be paid upfront. These fees are later apportioned between the parties based on the level of sup - port for the plaintiff’s claims, as determined in the court judgment (refer to Chapter V on the Bearing of Litigation Costs in the Measures on the Payment of Litigation Costs). 5.6 Relevance of Claimant/Plaintiff Conduct to Relief Like many other jurisdictions, there is prescrip - tion of action in Chinese civil litigation. For pat - ent infringement cases, generally speaking, the prescriptive period is three years commencing from the date when the claimant/plaintiff knows or should have known of the infringement and the infringer (refer to Article 74 of the PRC’s Patent Law). Therefore, the claimant’s/plaintiff’s delay in bringing proceedings may induce reduc - tion or even withholding of monetary relief. However, as Chinese laws do not require that the claimant/plaintiff engage in pre-action cor - respondence before initiating actions, the court will not withhold or reduce relief if the claimant/ plaintiff directly files civil actions with the court.
Also, since there is no mandatory requirement for the registration or recording of a licensee to bring legal action, there is no penalisation on relief to exclusive licensee claimants not named on the Patent Register.
6. Other IP Rights 6.1 Trade Marks
Quite a few trade mark disputes occur in the life sciences and pharma sector in China, whether between local practices or between local and foreign entities. The main source of law concerning trade mark disputes in the life sciences and pharma sector is the PRC’s Trade Mark Law, while the PRC’s Unfair Competition Law also regulates passing off or free-riding activities relating to unregis - tered marks. Given the above, restrictions on naming, issues around confusion and anti-counterfeiting for pharma/medical device marks will follow the general rules under the PRC’s Trade Mark Law and the PRC’s Unfair Competition Law. For restrictions on naming, based on the general principle that a generic name may not be regis - tered as a trade mark, Article 29 of the PRC’s Medicinal Product Administration Law further clarifies that the names of medicinal products listed in the national medicinal product stand - ards shall be the generic names of medicinal products and should not be used as trade marks. 6.2 Copyright Copyright disputes do occur in the life sciences and pharma sector in China.
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