CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
2.5 Prerequisites to Filing a Lawsuit In patent infringement cases, a patent holder or a licensee may have the right to file a lawsuit in the People’s Court, necessitating the provision of relevant ownership proof such as the record of the patent or licence with the patent office by the parties involved. However, it is not required to issue a formal demand letter, warning letters, or engage in mediation beforehand. 2.6 Legal Representation For patent administrative procedures in China, foreigners, foreign enterprises, or other foreign entities without a habitual residence or business office in China, seeking patent applications or handling other patent-related matters, must engage a legally established patent agency. Chinese individuals or entities applying for pat- ents or dealing with other patent-related affairs domestically may also engage a legally estab- lished patent agency. Regarding patent litigation procedures, foreign parties involved in civil litigation may appoint their country’s nationals as litigation agents or engage their country’s lawyers in a non-advo- cate capacity as litigation agents. However, when foreigners, stateless individuals, foreign enterprises, or organisations need an attorney in court proceedings, they must engage an attor- ney qualified in the People’s Republic of China. 2.7 Interim Injunctions In urgent cases where the lack of interim meas- ures could result in irreparable harm to the appli- cant’s legitimate rights or hinder the enforceabil- ity of a judgment, without contravening public interests, the patent holder may apply for a pre- liminary injunction, also known as pre-litigation preservation measures. This request is made to the People’s Court having jurisdiction over the domicile of the respondent or the court with juris-
grassroots People’s Courts may also review a determination of a famous trade mark case. Appellate proceedings for the technical IPs, regardless of whether they were adjudicated by Intermediate People’s Courts or High People’s Courts in the first instance, are under the direct jurisdiction of the Intellectual Property Court of the Supreme People’s Court. Cases involving design patents are handled by High People’s Courts. In China, the judgment issued by a court in an appellate proceeding is final and effective. Still, a party may challenge this judgment through a retrial proceeding. But the review for the institu- tion of the retrial proceeding is stringent. Usually, the retrial case is filed before the higher court of the court adjudicating the appellate proceeding. If that court is the Supreme People’s Court itself, then the party needs to file the retrial proceeding before the Supreme People’s Court. 2.4 Specialised Bodies/Organisations for the Resolution of Disputes In China, in addition to the court system intro- duced in 2.3 Courts With Jurisdiction , certain administrative bodies also have the authority to resolve intellectual property disputes. For exam- ple, local patent offices are given the authority to handle patent infringement cases. However, they can only award injunctive relief and have no power to determine damages. Customs may also take actions based on IP infringement claims. In practice, customs are more active in trade mark counterfeiting cases and there are only a couple of patent infringement cases in the most recent decade in which customs took action and issued a sanction order. In recent years, local administrations for market regula- tion have also been active in cases of enforcing trade secrets.
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