CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
provisions of the law, may request the CNIPA to declare the invalidity of the patent. For the declaration of non-infringement lawsuits, specific prerequisites must be met. If the patent owner issues a warning of patent infringement to another party, and upon written notification from the warned party or stakeholders urging the exercise of litigation rights, if within one month of the receipt of written notification or within two months from the date of the written notifi- cation’s dispatch, the patent owner neither with- draws the warning nor initiates legal action, the warned party or stakeholders can file a lawsuit in the People’s Court requesting confirmation that their actions do not infringe upon the patent. The People’s Court is obliged to accept such cases. For compulsory licensing, the Patent Law pro- vides specific circumstances in which such licensing can be granted. For example, after three full years from the patent grant date or after four full years from the patent application filing date, the patentee fails to exploit or fully exploit the patent without a justified reason or if the patentee’s exercise of patent rights is deemed monopolistic, causing adverse effects on com- petition and necessitating mitigation or elimina- tion. In cases of national emergency, extraordi- nary circumstances, or public interest demands, the CNIPA may also grant compulsory licens- ing. Moreover, in the interest of public health, the CNIPA may issue compulsory licensing for a patented medicine, allowing its production and export to countries or regions complying with relevant international treaties acceded by China. In circumstances where a subsequent inven- tion or utility model significantly advances tech- nologically and economically compared to an earlier granted patent, and the later invention’s exploitation depends on the earlier one, upon
request from the later patentee, the CNIPA may grant compulsory licensing to exploit the earlier invention or utility model. If compulsory licensing is granted according to the above, the CNIPA may, at the earlier patentee’s request, also grant compulsory licensing. These provisions under- score the flexibility and adaptability of China’s intellectual property framework to address vari- ous situations. 2.3 Courts With Jurisdiction Jurisdiction over technical IP cases in China falls within the authority of the specialised Intellec- tual Property Courts and Intermediate People’s Courts. Currently, Intellectual Property Courts have been established in Beijing, Shanghai, Guangzhou, and Hainan Free Trade Port to cen- trally handle the technical IP cases within their territorial jurisdiction. In other areas, specialised IP tribunals are established within the Interme- diate People’s Courts to handle these cases. Under Chinese law, technical IP covers invention patents, utility models, new varieties of plants, layout designs of integrated circuits, technical secrets, and computer software. The first instance design patent cases are reviewed by the specialised Intellectual Prop- erty Courts and Intermediate People’s Courts. With special approval from the Supreme Peo- ple’s Court, a grassroots People’s Court may also review a design patent case. However, this special treatment does not apply to the admin- istrative action of a design patent case. The first instance Soft IP cases are generally reviewed by the grassroots People’s Courts with the exception that the determination of famous trade marks are copyright cases relating to com- puter software, and are subject to the jurisdiction of the Intermediate People’s Courts. With special approval from the Supreme People’s Court, a
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