CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings The appellate procedure for patent rights pro- ceedings is normally the same as other civil or administrative lawsuits. However, there are spe- cial provisions concerning the appellate jurisdic- tion of such cases. For appealing cases, the Intel- lectual Property Court of the Supreme People’s Court determines administrative cases of patent authorisation and validity confirmation, as well as civil cases of patent ownership and infringe- ment involving invention patents and important and comprehensive utility model patents. Other civil cases involving patents on appeal go to the People’s Court that is at a higher level than the The court of the second instance shall imply a full review of the related facts and applicant stat- utes in the request for appeal. 8. Costs 8.1 Costs Before Filing a Lawsuit The following costs usually arise before filing a patent infringement lawsuit. • Preliminary evidence collection fees for infringement – including the costs of purchas- ing claimed infringing products and seeking investigation assistance. The costs depend on the difficulty of the case and the price of the claimed infringing products. court of first instance. 7.2 Type of Review • Appraisal fees – including costs of technical testing and infringing appraisal. The infringing appraisal is not a must in patent infringement lawsuits. • Notarial fees.
• Attorney’s fees. 8.2 Calculation of Court Fees
For a civil case on intellectual property rights, if there is no disputed amount or price, the case acceptance fee shall be CNY500 to CNY1,000 for each case; if there is any disputed amount or price, the case acceptance fee shall be paid by accumulating amounts in segments according to a certain proportion stipulated by the State Council. For each administrative case on patent, the case acceptance fee is CNY100. 8.3 Responsibility for Paying the Costs of Litigation The case acceptance fee shall be prepaid by the plaintiff, and the application fees for certain mat- ters in the lawsuit shall be prepaid by the appli- cant. The above litigation costs shall be borne by the losing party unless the prevailing party bears the costs at their free will. If the court determines that an infringing act exists and the plaintiff prevails, the damages shall also include the reasonable disbursements of the patentee for preventing the infringement, including reasonable litigation expenses and attorney’s fees. However, a prevailing defendant normally shall bear its own litigation expenses and attorney’s fees except when it proves the plaintiff’s abuse of right in filing the case, as described in 6.2 Rights of Prevailing Defend- ants . 9. Alternative Dispute Resolution 9.1 Type of Actions for Intellectual Property Alternative dispute resolution is frequently employed to resolve civil disputes involving intellectual property rights. For patent infringe-
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