CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
diction over the case. The applicant requests the court to immediately halt the infringing actions of the respondent. Several circumstances are generally considered urgent: • imminent unlawful disclosure of the appli- cant’s trade secrets; • impending violation of the applicant’s rights, such as publication rights or privacy rights; • unlawful disposal of the disputed intellectual property; • infringement of the applicant’s intellectual property in time-sensitive events like exhibi- tions; and • impending or ongoing infringement on time- sensitive popular programmes or content. 2.8 Protection for Potential Opponents The potential opponent can challenge the neces- sity of an injunction, especially in the situation when not implementing preservation measures would cause irreparable harm to the applicant’s legitimate rights or impede the enforceability of a court decision. Simultaneously, the potential opponent can also raise objections through fil- ing a patent invalidation application, questioning the stability of the validity of the rights involved. If a preservation order has already been issued, the potential opponent can submit an appeal for review, and the People’s Court will review and deliver a ruling within ten days of receiving the review application. Moreover, if the applicant’s request contains errors, the potential opponent may seek compensation for any losses incurred due to the preservation measures. 2.9 Special Limitation Provisions The statute of limitations for patent infringement lawsuits is three years, calculated from the date when the patent holder or related stakeholders became aware or should have been aware of the
infringement act and the infringer. However, if more than 20 years have passed since the rights were harmed, the People’s Court will not provide protection. Under exceptional circumstances, the People’s Court may, upon the request of the rights-holder, decide to extend this period. It is worth noting that the statutory limitation period can be interrupted upon a patent owner’s action to enforce or claim its right. In practice, issuance of a cease-and-desist letter, request of patent licence negotiations, and initiation of an infringement lawsuit are the most com- mon approaches to interrupt a statutory limita- tion period. Upon such an event, the three-year period will be recounted. In practice, it is also not uncommon to see that parties can heavily dispute the date when the patent holder or related stakeholders became aware or should have been aware of the infringe- ment act and the infringer. The Supreme Peo- ple’s Court has adopted a rather loose stand- ard for this date. For example, in some cases, the date of notarised purchase of the infringing product was considered as the date to start the calculation of the statutory limitation period. 2.10 Mechanisms to Obtain Evidence and Information In situations where evidence might be at risk of destruction or future unavailability, parties can request evidence preservation from the People’s Court during legal proceedings, and the court can proactively implement preservation meas- ures. If urgent, interested parties may apply for evidence preservation before initiating a law- suit or arbitration to the court in the location of the evidence, the respondent’s domicile, or the court with jurisdiction over the case. For urgently needed evidence preservation, the court must issue a ruling within 48 hours, while the timeline
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