Chapter 9: Patent Infringement and Protection

9.1 Types of Patent Infringement

Under the Patent Law, patent infringement includes: direct infringement (making, using, offering to sell, selling, or importing a patented product; or using a patented process), indirect infringement (inducing or aiding infringement), and equivalent infringement (doctrine of equivalents, where a feature performs substantially the same function in substantially the same way to achieve substantially the same result).

9.2 Infringement Determination

Infringement determination in China follows the all-elements rule: the accused product or process must include all technical features recited in the claims (or their equivalents). For invention and utility model patents, the court first interprets the claims, then compares the accused product/process to the claims. For design patents, the comparison is based on the overall visual impression.

9.3 Remedies for Infringement

Patentees may seek the following remedies: injunctions (ordering the infringer to cease infringement), damages (calculated based on actual losses, infringer's profits, or reasonable royalty; statutory damages up to CNY 5 million for willful infringement), and reasonable expenses (including attorney fees and investigation costs). The 2020 Amendment introduced punitive damages of up to 5 times the calculated damages for willful infringement.

9.4 Administrative Enforcement

Patentees may request administrative enforcement through local intellectual property offices. Administrative authorities may order the infringer to cease infringement, confiscate infringing products, and impose fines. Administrative enforcement is generally faster than judicial proceedings but does not award damages.

9.5 Border Enforcement

Patentees may record their patents with China Customs to prevent import/export of infringing goods. Customs will detain suspected infringing goods and notify the patentee, who may then initiate infringement proceedings.

Understanding the legal framework for infringement and protection is essential, but equally valuable is examining how landmark cases have shaped the interpretation and application of patent law in China, which we explore in the next chapter.

Chapter 10: Landmark Cases and Legal Framework

10.1 Patent Eligibility and Scope

10.1.1 Huawei v. Samsung (2018)

This landmark case involved standard-essential patents (SEPs) and FRAND licensing obligations. The court established that SEP holders must negotiate in good faith and that implementers must not engage in hold-out behavior. The case set important precedents for balancing patent rights with standardization interests in China.

10.1.2 Chint v. Schneider (2007)

This case resulted in one of the largest patent infringement damages awards in China at the time (CNY 334 million). The case established important precedents for calculating damages based on reasonable royalty rates and demonstrated the courts' willingness to award substantial damages for patent infringement.

10.2 Inventiveness and Prior Art

10.2.1 Key Guidelines on Inventiveness Assessment (2025 Update)

The 2025 Patent Examination Guidelines revision introduced updated standards for assessing inventiveness, particularly for AI-related inventions and pharmaceutical inventions. For AI inventions, the Guidelines clarify that algorithms must be combined with specific technical fields and produce technical effects to be patentable. For pharmaceutical inventions, the Guidelines address the patentability of crystal forms, salts, and metabolites.

10.3 Punitive Damages

10.3.1 First Punitive Damages Case (2021)

Following the 2020 Amendment's introduction of punitive damages, the first punitive damages case in a patent infringement dispute was decided in 2021. The court awarded 5 times the calculated damages, sending a strong signal that willful patent infringement will face severe financial consequences in China.

10.4 2024-2025 Important Developments

Key developments include: the Supreme People's Court's judicial interpretation on punitive damages (2021), the CNIPA's updated Patent Examination Guidelines (2025) addressing AI and same-day dual filing, and the continued strengthening of IP protection as part of China's broader innovation strategy. The National People's Congress is also considering further amendments to the Patent Law to strengthen protection for genetic resources and traditional knowledge.

Landmark cases illustrate the practical application of patent law, but day-to-day patent management requires careful attention to the fee schedule and cost structure. The next chapter provides a comprehensive overview of CNIPA's fee system.

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