CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
• initiating platform complaints; • submitting administrative reports; and • managing customs detentions.
quently as litigation. In 2021, the NMPA and the CNIPA released the Implementation Measures for the Mechanism for Early Resolution of Drug Patent Disputes, for better implementation of administrative determination in drug application disputes. Mediation can be employed concurrently with litigation, arbitration and administrative determi - nation to achieve amicable resolution. As it can be integrated into other ADR options when par - ties intend to settle cases amicably, mediation is widely utilised. ADR is not mandatory during court proceedings; the court in particular has no power to require the parties to engage in arbitration, since arbi - tration can be conducted only with parties’ con - sent. However, in practice, the court will usu - ally strongly encourage the parties to engage in mediation/settlement discussion as a friendlier approach to resolving the dispute; this is com - mon in Chinese judicial practice. In Chinese civil litigation, as in many other juris - dictions, a prescription of action exists. For pat - ent infringement cases, the prescriptive period is generally three years from the date when the claimant/plaintiff becomes aware or should have known about the infringement and the infringer (see Article 74 of the PRC’s Patent Law). Con - sequently, any delay by the claimant/plaintiff in initiating proceedings may lead to a reduction or even withholding of monetary relief. Notably, Chinese laws do not mandate that the claimant/plaintiff engage in pre-action corre - spondence before initiating legal actions. There - 10. Settlement/Antitrust 10.1 Considerations and Scrutiny
When dealing with life sciences and pharma IP infringement on internet platforms, the right- owner has the option to file complaints or reports with the platforms selling the infringing or counterfeit products. They may also choose to submit administrative complaints to competent IP administrations in lieu of pursuing civil litiga - tion. In China, customs detention serves as an administrative measure for combating infringe - ment and counterfeiting during the importation and exportation processes. The PRC’s Regula - tion on the Customs Protection of Intellectual Property Rights is specifically designed to facili - tate customs protection of IP rights. 9. Alternative Dispute Resolution 9.1 ADR Options Alternative dispute resolution (ADR) options for life sciences disputes in China encompass arbi - tration, administrative determination and media- tion. Arbitration is chosen pre-emptively for its advan - tages in confidentiality, procedural flexibility and the selection of arbitrators with relevant exper - tise. Although traditionally a common ADR option, its adoption in life sciences disputes, particularly in infringement cases, is less fre - quent compared to litigation. Administrative determination, outlined in the PRC’s Patent Law, serves as an alternative for patent disputes related to drug registration and is known as the “early resolution mechanism”. Recognised for its efficiency, it is increasingly utilised in life sciences disputes, nearly as fre -
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