CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
3.2 Direct and Indirect Infringement A direct infringement of an invention or utility model patent happens when an entity or individ- ual, without permission of the patentee, exploits the patent for production or business purposes, that is, to: • make, use, promise the sale of, sell or import the patented product; • use the patented process; or • use, promise the sale of, sell or import the product directly obtained from the patented process. A direct infringement of a design patent happens when an entity or individual, without permission of the patentee, exploits the patent, that is, to make, promise to sell, sell, or import the patent bearing the patented design, for production or business purposes. An indirect infringement of a patent happens when an entity or individual, without permission of the patentee: • knowingly provides materials, equipment, components, intermediates, etc, specifically used for patent implementation, to others for patent infringement acts for production or business purposes; or • actively induces others to commit patent infringement for production and business purposes, knowing that the relevant prod- ucts and methods have been granted patent rights. The remedies for a prevailing patentee in the pat- ent infringement lawsuit typically include ces- sation of infringement, compensation for loss, elimination of adverse effects and rehabilitation of reputation, and making an apology. One who
chasers and harming societal public interests, the Procuratorate can use this as grounds to initiate public interest litigation. 2.13 Restrictions on Assertion of an Intellectual Property Right In the fourth amendment of the Patent Law in 2021, China introduced the principle of good faith and creditability. This entails that the appli- cation and exercise of patent rights must adhere to the principles of good faith and creditability, prohibiting the abuse of patent rights to under- mine public interest or the legitimate rights of others. Instances where patent rights are abused to exclude or restrict competition, constituting monopolistic behaviour, will be dealt with in accordance with the Anti-Monopoly Law of the People’s Republic of China. At the same time, on 20 January 2024, the CNIPA published the Provisions on the Standardization of Patent Application Activities, which further clarifies the prohibition of the abuse of patent application. 3. Infringement 3.1 Necessary Parties to an Action for Infringement The patentee or an interested party in a patent has the right to bring an action for infringement against the claimed infringing party. The inter- ested parties generally include the licensees and inheritors of the patent right. There is no unified standard among the People’s Courts regard- ing the requirement of a patent licensee as the plaintiff in an infringement lawsuit. Generally, an exclusive licensee is allowed to file a patent infringement lawsuit alone. A sole licensee can bring a patent infringement lawsuit if the paten- tee does not do so. A non-exclusive licensee, with authorisation from the patentee, may show as the plaintiff in a patent infringement lawsuit.
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