Comments to CNIPA on Guideline on Administrative Adjudication for Patent Infringement Disputes (Draft for Comments)

2019-12-12 | Beijing, Shanghai

For patent infringement disputes, China is currently adopting a “double-track” remedy system, i.e., administrative remedy and judicial remedy, which is suitable for the current condition of the country. In the recent years, as the number of patent infringement cases increases rapidly, an improved administrative adjudication system for patent infringement disputes could shorten the time spent on protecting the patent rights. Moreover, it is proved that the patent administrative department is more efficient, more convenient and more cost effective.

However, after years of practice, there are some problems revealed about the administrative adjudication system for patent infringement disputes: firstly, the relevant laws and regulations needs to be improved; secondly, the administrative remedy and judicial remedy are not well connected, which causes a waste of resources; thirdly, the professional level of the administrative adjudication needs to be improved.

The European Chamber of Commerce suggest serious consideration be given while providing the municipal, or county-level patent administrative department rights to handle patent infringement disputes. Patent cases are generally delivered to intermediate courts or intellectual property courts for ruling, but county-level decisions are usually made in primary courts. How the administrative remedy converges with the judicial remedy needs to be further clarified. In addition, the judgment of patent dispute cases requires a high level of professionalism, and level of patent administration varies across different municipals and counties, further worrying member companies.

The European Chamber of Commerce recommended that CNIPA considers expanding administrative enforcement power from two perspectives, one is to focus only on design patents, and the other is that decision of injunction must require patentee to provide security.