CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
conducting investigations and questioning the involved parties, no new facts, evidence or rea - sons are presented, the court may deem hold - ing a hearing session unnecessary. The second- instance court is required to complete the trial of an appeal case within three months after it is docketed. Any extension of this period due to special circumstances requires approval from the court president. In the second instance, the court primarily assesses whether there were errors in factual determination or legal applica - tion during the first-instance court’s trial. Practi - cally, the second instance of a patent infringe - ment lawsuit usually takes between nine months and one year. Appeals Regarding Patent Validity Cases If any party disagrees with the CNIPA’s decision on patent invalidation or maintenance, they have a three-month window from the date of receiving the notification to file a lawsuit in court request - ing a judicial review. During the legal proceed - ings, the court notifies the opposing party from the invalidation request procedures to partici - pate in the litigation as a third party. The judicial review is a two-instance administrative lawsuit, which may take between one year and one-and- a-half years in total. Release of the Preliminary Injunction In China, a preliminary injunction is tied to a specific lawsuit. Therefore, once a patent is declared invalid, as per PRC laws and regula - tions, the patentee is required to withdraw the lawsuit. If not, the court will dismiss the lawsuit, rendering the underlying lawsuit non-existent. In such cases, the preliminary injunction becomes invalid, and the court issues an order to lift the previous preliminary injunction. Simultaneously, the defendant retains the right to apply for the release of the preliminary injunction. The court
will assess the application and make a ruling accordingly. 7.2 Appeal Court(s) Arbiter The Panel of Judges for Patent Litigation Appeals In China, the Supreme Court hears the vast majority of second-instance patent infringe - ment cases. That said, according to the latest regulations, appellate cases for utility model pat - ents and design patents shall be heard by the provincial Higher People’s Court rather than the Supreme Court. A collegial panel encompassing entirely judges shall be formed to adjudicate a second-instance infringement lawsuit. The members of a colle - gial bench must be in an odd number. In some patent cases, as in first-instance proceedings, a “technical judge” will be present during the hearing besides the collegial panel. 7.3 Special Provisions In patent litigation, the general provisions of the PRC’s Civil Procedure Law are applicable. Addi - tionally, there are certain specific provisions in IP litigation, such as: • the Several Provisions on Evidence in Intel - lectual Property Civil Litigation; and • the Several Provisions of the Supreme Peo - ple’s Court on the Application of Law in the Trial of Patent Dispute Cases.
8. Other Relevant Forums/ Procedures 8.1 The UPC or Other Forums
In the context of life sciences and pharma IP liti - gation, additional forums or avenues for dispute resolution involve:
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