China Releases Draft Measures for Administrative Adjudication of Major Patent Infringement Disputes for Comment

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On March 2, 2021, the China National Intellectual Property Administration (CNIPA) released the Measures for Administrative Adjudication of Major Patent Infringement Disputes (Draft for Solicitation of Comments) 《重大专利侵权纠纷行政裁决办法(征求意见稿)》.  The Measures, supported by Article 70 of the amended Patent Law, provide an alternative to patent litigation to resolve patent infringement disputes in China. However, unlike litigation, no damages are available as a remedy – only injunctions.  The Measures do provide a potential advantage though – speed. CNIPA is supposed to close the case within 90 days from the date of filing the case.

Per Article 3, major patent infringement disputes include:

( 1 ) Involving major public interests;

( 2 ) Those that have a significant impact on the development of the industry;

( 3 ) Major cases across provinces, autonomous regions, and municipalities directly under the Central Government;

( 4 ) Other major cases that should be subject to administrative adjudication by the CNIPA.

Request for adjudication must meet the following requirements:

(1) The requestor is the patentee or interested party;

(2) There is a clear respondent;

(3) There are clear requests and specific facts and reasons;

(4) The party concerned did not file a lawsuit with the people’s court over the patent infringement dispute.

Perhaps because CNIPA must close the case within 90 days (although extension are available), other deadlines are tight also and don’t give a potential respondent much time to respond.  For example, a respondent only has 15 days to submit a defense to charges of infringement from date of notification (Article 10).  If CNIPA decides to conduct an oral hearing, only 3 working days notice need to be given to the parties (Article 16).

The full text of the draft Measures are available here: 重大专利侵权纠纷行政裁决办法(征求意见稿).  The Measures will go into effect June 1, 2021, concurrently with the newly amended Patent Law.

The deadline to submit comments is April 2, 2021 and can be submitted via:

1.Email:zhifa@cnipa.gov.cn

2.Fax:010-62083319

3.Postal mail:北京市海淀区西土城路6号国家知识产权局知识产权保护司执法指导处 邮编100088

Author: Aaron Wininger

Aaron Wininger is a Senior Attorney and Director of China Intellectual Property at Schwegman Lundberg & Woessner.

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Author: Aaron Wininger

Aaron Wininger is a Senior Attorney and Director of China Intellectual Property at Schwegman Lundberg & Woessner.