On December 20, 2025, the Supreme People’s Court released the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (III) (Draft for Public Comment) (hereinafter the Draft Interpretation III on Patent Infringement Disputes), seeking opinions from members of the public who have been given until February 2, 2026 to provide those opinions.

Specifically, on December 30, 2024, Article 8 of the Guiding Opinions on Promoting Quality and Efficiency and Substantial Resolution of Conflicts and Disputes in Adjudication Work issued by the Supreme People’s Court stipulates: “If the plaintiff adds a defendant to circumvent jurisdictional provisions, the People’s Court hearing the case shall, when determining whether it has jurisdiction, require the plaintiff to submit evidence proving that the defendant has a stake in the disputed matter. If there is no stake and there are no other statutory matters for determining jurisdiction, the People’s Court hearing the case shall rule to transfer the case to a People’s Court with jurisdiction.” This article clearly stipulates that the court should substantively examine the eligibility of the parties on whom jurisdiction is determined during the jurisdictional stage, requiring the plaintiff to submit evidence proving that the defendant on whom jurisdiction is determined has a stake in the disputed matter, thus preventing improper “jurisdiction-grabbing” behavior. On April 16, 2025, the Supreme People’s Court, in the Notice on Upholding Strict and Impartial Judicial Practices and Regulating the Trial and Enforcement of Cases Involving Enterprises, reiterated “3. Regulate the filing and jurisdiction of cases involving enterprises, and prevent and correct local protectionism in law enforcement and judicial practice… Adhere to statutory jurisdiction as the principle, with transfer of jurisdiction and designated jurisdiction as exceptions. It is strictly prohibited to expand jurisdiction over cases involving enterprises or artificially create jurisdiction in other locations due to the influence of local protectionism or profit-seeking purposes, or to refuse to file or dismiss civil cases involving enterprises that should be filed according to law on the grounds of suspected criminal offenses. When a party raises an objection to jurisdiction, or a lower court requests designated jurisdiction, the relevant court shall strictly review and handle it according to law, preventing illegal cross-regional law enforcement and profit-seeking law enforcement and judicial practice from the source.”

In several judicial cases, the Supreme People’s Court has also made similar rulings. For example, in the Civil Ruling (2016) Zui Gao Fa Min Xia Zhong No. 72, the Supreme People’s Court pointed out that: “People’s Courts, in hearing disputes over jurisdictional objections, are not limited to formal review, but should conduct necessary substantive reviews of the facts of the case related to the jurisdictional objection.” At the same time, in the Civil Ruling (2017) Zui Gao Fa Min Xia No. 10, the Supreme People’s Court pointed out that: “Whether it is necessary to examine the defendant’s eligibility during the jurisdictional objection review stage should be determined in conjunction with the specific facts of the case. When the defendant’s eligibility will directly determine whether the original court has jurisdiction over the case, the court should examine whether the defendant is an eligible defendant.” Furthermore, in the Civil Ruling (2020) Zui Gao Fa Zhi Min Xia Zhong No. 420, the Supreme People’s Court clarified: “Whether a People’s Court should examine the eligibility of the defendants in the jurisdictional objection procedure should be determined based on whether it affects the court’s jurisdiction over the case, taking into account the specific circumstances of the case. When the eligibility of some defendants does not affect the jurisdiction of the court hearing the case, the eligibility of the defendants can be examined together when the case enters the substantive trial stage; when some defendants become the link in determining the jurisdiction of the case, and their eligibility will directly affect the jurisdiction of the court hearing the case, then the eligibility of these defendants should be examined first in the jurisdictional objection stage.”

The adjudication rule of “examine whether there is an actual connection between the defendant on which the jurisdictional link is determined and the disputed matter” has been practiced in many cases. Article 1.1 of the Draft Interpretation III on Patent Infringement Disputes reiterates this practice rule in patent infringement cases through judicial interpretation.

Article 1.2 of the Draft Interpretation III on Patent Infringement Disputes further clarifies the boundaries of jurisdiction regarding the fictitious listing of infringing acts. “Substantive grounds such as no infringement or breach of contract, or that they should not bear liability” are generally not grounds for review when fictitiously listing a defendant during the jurisdictional objection stage. However, an exception is made where “where the alleged tortious act clearly does not fall under the category of infringing acts as defined by law”.

This clause clarifies the basic principle that substantive reasons are not examined during the jurisdictional objection stage, unless the alleged infringing act clearly does not constitute an infringing act.

2. Clarification that the first-instance court may hear the case in advance during the appeal period for an objection to jurisdiction.

Original text of the provision:

Article 2

If a party appeals against a first instance ruling rejecting an objection to jurisdiction, the court of first instance may organize an exchange of evidence, convene a pre-trial conference, etc., before the court of second instance issues a final ruling, but may not render a judgment. If the court of second instance rules that the objection to jurisdiction is valid, the transcripts of the aforementioned evidence exchange and pre-trial conference shall serve as the basis for the trial by the court to which the case is transferred.

Commentary:

Prior to this provision, there were few regulations regarding whether the first-instance court could proceed with substantive proceedings during the appeal period for an objection to jurisdiction. Article 171.2 of the Civil Procedure Law of the People’s Republic of China only clarified the right and time limit for appeals against rulings on objections to jurisdiction in the first instance, namely: “If a party is dissatisfied with the ruling of the local People’s Court in the first instance, he/she has the right to appeal to the People’s Court at the next higher level within ten days from the date of service of the ruling.”

However, it did not provide any detailed provisions on the scope of authority of the court of first instance during the appeal period or the litigation activities that can be carried out. In practice, many cases only begin substantive proceedings after the second instance of the objection to jurisdiction has concluded. While strictly adhering to the model of proceeding with substantive proceedings only after the final judgment of the second instance on jurisdiction can prevent the court of first instance from wasting judicial resources when the court of second instance determines that the original court has no jurisdiction, it also leads to excessively lengthy judicial procedures in practice. In the era of traditional paper case files, the above case handling model was also constrained (to some extent) by the case file management method. Specifically, after a party files an appeal for an objection to jurisdiction, the court of first instance usually transfers all paper case files to the court of second instance for review. This operational model means that the court of first instance is unable to conduct any substantive trial activities because it does not have access to the case files.

Recent practices have shown that the widespread adoption of electronic case file systems offers a technological possibility for overcoming these difficulties. In recent years, courts at all levels across the country have gradually implemented the electronic collection, storage, and transfer of case materials, allowing many cases to complete the entire trial process without relying on paper files. Due to the characteristics of electronic case files, the court of first instance can retain copies of relevant materials while transferring the electronic case files to the court of second instance for review, thus possessing the basic conditions for conducting trial activities.

Against this backdrop, some courts have begun to experiment with organizing evidence exchange and sorting out the focus of the case dispute between the parties during the appeal period for jurisdictional objection, laying the foundation for subsequent trial work by securing evidence in advance and clarifying the core of the dispute. This innovative practice has effectively shortened the overall trial cycle, but, due to the lack of clear legal basis, the procedural legality remains controversial, urgently requiring judicial interpretation for confirmation and standardization.

The promulgation of Article 2 of the Draft Interpretation III on Patent Infringement Disputes is both a systematic response to the actual needs of adjudication and an attempt to further refine the adjudication model. We can foresee that while this article effectively addresses the problem of procedural delays, its related arrangements will also generate some controversy. On the one hand, the article explicitly grants the court of first instance the authority to organize evidence exchange and convene pre-trial conferences during the appeal period for jurisdictional objections, clearing away previous procedural obstacles at the judicial interpretation level and providing a legal basis for mature innovative practices. At the same time, the article explicitly excludes the court of first instance from having the power to “render a judgment,” upholding the fundamental principle that no substantive judgment can be made before jurisdiction is determined, and avoiding unfair substantive adjudication due to procedural preemption. In summary, clarifying this basic system is of great significance for accelerating case adjudication, improving judicial efficiency, and protecting the rights and interests of the parties involved.

However, this article may cause some controversy in the following aspects. First, the article attempts to limit the scope of authority of the first instance court, specifically using a “list + catch-all” approach to clarify the permitted activities, namely: “organize an exchange of evidence, convene a pre-trial conference, etc.” Although “formal trial” is not explicitly included in the permitted scope, the word “etc.” in the article allows for such a possibility. In practice, the plaintiff may argue that formal trial is also an activity that the court of first instance can carry out when the issue of jurisdiction is not yet determined. At the same time, the defendant may argue that the activities permitted by the judicial interpretation are limited to trial preparation work such as “exchange of evidence and pre-trial conferences,” and should not include formal trial proceedings.Due to the current ambiguity, the application of this article may cause controversy in future judicial practice.

Second, it requires that in cases where an objection to jurisdiction is valid, the transcripts of evidence exchange and pre-trial conferences should serve as the basis for the trial in the court to which the case is transferred. In extreme cases, this could allow a court lacking jurisdiction to complete many substantive proceedings, potentially encouraging forum shopping by the plaintiff and weakening the remedies offered to the parties by the objection to jurisdiction procedure. For example, the plaintiff might knowingly file a lawsuit without jurisdiction and actively seek a trial in the court of first instance, including a formal hearing. Thus, even if the case is subsequently transferred to a court with jurisdiction, most of the proceedings will have already been completed, and the remedies that the objection to jurisdiction should provide to the defendant may become meaningless.

In summary, this provision will significantly curb the abuse of litigation rights and improve trial efficiency. Meanwhile, in its specific design, the following issues need careful consideration:

• including the scope of the trial authority of the court of first instance before the final judgment on the objection to jurisdiction, and
• whether the transferred court has the right to retry the entire case if the objection to jurisdiction is upheld.

3.  Limitations and scope of the place of sale in jurisdictional issues

Original text of the provision:

Article 3

The place of sale in determining jurisdiction over patent infringement disputes generally includes the seller’s principal place of business, the place where the allegedly infringing product is stored, and the place where it is seized or detained, etc., but does not include the place of delivery, the place of receipt for online shopping, etc., that the plaintiff can choose at will.

Commentary:

The normative source underpinning how Article 3 is adjudicated is in effect the build-up of judicial practice experience. Its main source can be traced back to the typical case adjudication rules in the Summary of the Annual Report on Intellectual Property Cases of the Supreme People’s Court (2018). In the case of jurisdictional objection in the dispute over infringement of utility model patent rights between the appellant Ningbo Aux Air Conditioning Co., Ltd. and the appellee Zhuhai Gree Electric Appliances, Inc. and the first-instance defendant Guangzhou Jingdong Trading Co., Ltd. (hereinafter referred to as the “Aux Air Conditioning Case”, case number: (2018) Zui Gao Fa Min Xia Zhong No. 93 ), the Supreme People’s Court clearly pointed out that: “in the online environment, the place of sale in intellectual property infringement cases generally includes the seller’s principal place of business, the place where the allegedly infringing product is stored, the place of shipment, and the place where it is seized or detained, etc., which are not subject to the will of the online buyer. However, the place of receipt for online shopping that the online buyer can choose at will is usually not suitable as the place of online sales.”

This case clarified the core criteria for determining the “place of online sales,” excluding the jurisdictional effect of arbitrarily chosen delivery locations, and provides an important reference for the adjudication of the following similar cases.

The adjudication rules in this case differ from Article 3 of this judicial interpretation in two key aspects regarding the scope of the listed places of sales:

First, the Draft Interpretation III on Patent Infringement Disputes explicitly excludes “the place of delivery that the plaintiff can choose at will,” rather than “the place of shipment,” which is explicitly listed as a type of sales location in the “AUX Air Conditioner Case.” The core logic behind including the place of shipment in the “AUX Air Conditioner Case” is that the place of shipment is usually determined by the seller and is not subject to the buyer’s will, thus forming a stable jurisdictional link with the sales activity. The adjustment made in this judicial interpretation may be a refinement of the wording based on careful consideration of the complex situations in judicial practice. In practice, the place of shipment in some transaction models is not entirely determined by the seller, and there may be situations where the buyer designates the shipping warehouse, or where the buyer’s will influences the determination of the place of shipment. The language of the Draft Interpretation III on Patent Infringement Disputes retains the possibility of using the place of shipment, which is indeed determined by the seller and closely related to the sales activity, as a jurisdictional link in practice. Meanwhile, the general statement: “the place of delivery that the plaintiff can choose at will” leaves room for the court to make flexible judgments based on the specific facts of the case, which is more in line with the complex needs of judicial practice.

Second, the Draft Interpretation III on Patent Infringement Disputes expands the rules for determining the place of sale from the “online environment” limited in the “AUX Air Conditioner case” to all patent infringement disputes. This judicial interpretation broadens the scope of application of the rules to all patent infringement disputes, breaking down the barriers between online and offline environments. It clarifies the unified standard that: “the determination of the place of sale must exclude the plaintiff can choose at will.”

Regardless of whether the transaction is online or offline, any delivery location, receipt location, or self-pickup point that the plaintiff can choose at will cannot be used as the place of sale for determining jurisdiction. Instead, locations directly related to the core aspects of the sales process and not subject to the buyer’s will, such as the seller’s principal place of business, the storage location of the allegedly infringing products, and the location of seizure or detention, are the core basis for determining the place of sale.This expansive modification simplifies the standards for determining jurisdiction and reduces the litigation cognitive costs for the parties involved.

4. Patent Evaluation Report

Original text of the provision:

Article 4

In cases involving disputes over infringement of utility model or design patent rights, the People’s Court may, in accordance with Article 66.2 of the Patent Law, require the plaintiff to submit a patent evaluation report. If the plaintiff refuses to submit such a report within a reasonable period without justifiable reason, the people’s court shall rule to dismiss the lawsuit.

If the patent evaluation report submitted by the plaintiff concludes that the patent does not meet the statutory conditions for granting a patent, the People’s Court shall explain to the defendant whether they intend to assert a prior art or prior design defense and whether they intend to request the patent administration department under the State Council to declare the patent invalid. If the defendant requests a stay of proceedings on the grounds of requesting the patent administration department under the State Council to declare the patent invalid, the People’s Court shall rule to suspend the proceedings, unless infringement is found not to have occurred.

Commentary:

Article 4 of the Draft Interpretation III on Patent Infringement Disputes modifies the existing provisions of the Several Provisions of the Supreme People’s Court on Issues Concerning the Application of Law in the Trial of Patent Dispute Cases. Article 4 of the Several Provisions of the Supreme People’s Court on Issues Concerning the Application of Law in the Trial of Patent Dispute Cases, which came into effect on January 1, 2021, stipulates that: “As needed for the trial, the People’s Court may require the plaintiff to submit a search report or a patent evaluation report. If the plaintiff fails to submit such a report without justifiable reason, the People’s Court may rule to suspend the litigation or order the plaintiff to bear possible adverse consequences.”

According to the Several Provisions, the plaintiff’s failure to submit a patent evaluation report does not necessarily lead to the suspension of the litigation, and judges have discretion in handling the matter. The Draft Interpretation III on Patent Infringement Disputes explicitly requires the court to dismiss the lawsuit (using the directive “shall”). This is also one of the manifestations of the Supreme People’s Court’s latest practice. On July 30, 2025, the Supreme People’s Court issued a Reply of the Supreme People’s Court on Issues Concerning the Application of Law in the Trial of Cases Involving Patent Evaluation Reports, which clarified that: “if a patent evaluation report holds that the patent in question does not meet the conditions for granting patent rights as stipulated in the Patent Law of the People’s Republic of China, the People’s Court shall not dismiss the lawsuit solely based on this report, but shall provide clarification in light of the specific circumstances of the case and make a judgment in accordance with the law.”

Therefore,it is foreseeable that patent evaluation reports will become one of the necessary materials in disputes involving infringement of utility model or design patent rights.

A more common issue in practice is how courts handle cases where patent evaluation reports reach a negative conclusion. The Supreme People’s Court’s reply in July of this year addressed this issue after the report was submitted, stating that courts cannot dismiss a lawsuit solely because the patent evaluation report is negative, but must still adjudicate based on the evidence submitted by both parties.

Two consecutive documents issued by the Supreme People’s Court have clarified core issues concerning patent evaluation reports. These confirm that a patent evaluation report is one of the necessary conditions for a plaintiff to file a lawsuit in a utility model or design patent dispute. However, the content of the patent evaluation report does not definitively determine the judgment. The validity of the patent remains a matter for the patent administration department to examine. Although the patent evaluation report is one of the materials the plaintiff must submit, the court should not rely solely on the conclusion of the patent evaluation report, but should fully consider the evidence on file and make a judgment.

5. Amending claims in litigation

Original text of the provision:

Article 5

Before the conclusion of the court debate in the second instance procedure, if the claims asserted by the right holder are declared invalid by the patent administration department of the State Council and determined to have legal effect, and the rights holder formally requests a change to the asserted claims, the People’s Court shall grant the request; if, after explanation, the rights holder still asserts the invalidated claims, the People’s Court shall not support the request.

If, before the conclusion of the court debate in the second instance proceedings, the amendment to the claims asserted by the rights holder is accepted by the patent administration department of the State Council and determined to have legal effect, the People’s Court shall compare the amended claims with the allegedly infringing technical solution.

Commentary：

Article 5 of the Draft Interpretation III on Patent Infringement Disputes provides targeted regulations for special circumstances where the claims of the patent in question change during the second instance proceedings.

As a standard and core defense measure by alleged infringing parties in patent infringement lawsuits, they typically file patent invalidation requests with the China National Intellectual Property Administration (CNIPA), attempting to avoid liability for infringement by denying the validity of the patent right. Correspondingly, the connection between the infringement litigation proceedings heard by the courts and the invalidation proceedings heard by the CNIPA has always been a difficult point in judicial practice.One of the core controversies is how to handle the ongoing litigation proceedings when the invalidation proceedings result in a change to the claims asserted by the patent holder.

The Supreme People’s Court has gradually explored and formed more advanced adjudication rules. The promulgation of Article 5 is a systematic refinement and solidification of these practical experiences. For example, in Case (2023) Zui Gao Fa Zhi Min Zhong No. 2985, the Supreme People’s Court held that: “the changes in the content of the claims asserted by Company 1 and Company 3 in the second instance were due to their legal modification of the claims during the invalidation proceedings conducted concurrently with the trial of this case. They did not add any new claims in the second instance. In this situation, the People’s Court can conduct the trial based on the content of the aforementioned modified claims without obtaining the consent of the other parties.” As another example, in Case (2021) Zui Gao Fa Zhi Min Zhong No. 5610, the Supreme People’s Court held that: “claim 1 of the patent in question was modified through the invalidation proceedings of the CNIPA. This change occurred during the second instance proceedings. Claim 1 of the patent in question was not modified when the first instance judgment was made. The first instance court’s determination of infringement based on claim 1 before modification was not improper. Zhongcheng Company’s argument that the second instance court should remand the case for retrial lacks legal basis. Furthermore, Zhongcheng Company contended during the second instance trial that the scope of protection of the patent right in question should be determined based on the modified claim 1, the relevant determinations of the second instance court are not in violation of the relevant procedural law provisions.”

Article 5 of the Draft Interpretation III on Patent Infringement Disputes, while incorporating these case rulings, aims to provide clear regulations from two dimensions:

First, regarding the situation where “the claims are declared invalid and are effective,” it grants the patent holder the right to amend the claims. If the patent holder requests an amendment before the conclusion of the court of second instance debate, the court should grant it. If, after the court’s explanation, the patent holder still insists on asserting the invalid claims, the court will not support it.

Second, regarding the situation where “the amended claims are accepted and are effective,” it clarifies the court’s obligation to compare the amended claims with the allegedly infringing technical solution. This provision clarifies the obligation of the court of second instance to continue the trial, effectively reducing the space for procedural delays.

However, the wording of this provision is somewhat ambiguous. “Determined to have legal effect” more closely aligns with the situation where, after the CNIPA makes a relevant decision, all administrative litigation procedures are completed, and the judgment becomes final. However, if this is the intended meaning, it might contradict the needs of judicial practice. If “determined to have legal effect” refers to the CNIPA accepting the relevant amendments, the wording may need further adjustment to clarify this meaning. Specifically, from the perspective of the patent invalidation examination system, the CNIPA’s invalidation decision or decision on the claims amendment is not immediately “determined to have legal effect” after issuance. If the patentee disagrees with the decision, they have the right to file an administrative lawsuit with the People’s Court, and the administrative litigation process often lasts for more than two years. This means that after the CNIPA makes an invalidation decision or a decision to accept the claims amendment, as long as the patentee initiates administrative litigation proceedings, and these proceedings have not yet concluded, the aforementioned decision remains in a state of pending validity, failing to meet the applicable conditions for “determined to have legal effect.” Therefore, when the intervention of administrative litigation proceedings prevents the timely determination of the validity of the relevant decision, the applicable conditions of Article 5 are difficult to meet. The trial period for second-instance infringement lawsuits is typically much shorter than that for administrative lawsuits. This means that the findings of invalidation decisions or claims amendment decisions have almost no substantial impact on ongoing first-instance and second-instance civil infringement lawsuits.This makes it difficult to achieve an effective connection between infringement litigation procedures and invalidation proceedings, contradicting the practical need for efficiently resolving patent infringement disputes in judicial practice.

6. Obligation to voluntarily report invalid declaration

Original text of the provision:

Article 6

If a claim asserted by the rights holder is declared wholly or partially invalid, or if the amendment is accepted by the patent administration department under the State Council, the patentee shall promptly notify the People’s Court hearing the patent infringement lawsuit. If the patentee fails to notify the court in a timely manner without justifiable reason, the People’s Court may order the patentee to bear the corresponding adverse consequences.

Commentary:

So far as the normative origins are concerned, Article 6 is an institutionalized refinement and promotion of the spirit of typical judicial disciplinary cases adjudicated by the Supreme People’s Court. Its direct source can be traced back to the adjudication rules established by the Judicial Penalty Decision (2024) Zui Gao Fa Zhi Si Cheng No. 2. In this case, the CNIPA accepted the amended patent claims submitted by Company 1 during the oral hearing on October 14, 2022. This fact directly relates to the definition of the scope of protection of the patent right in question and is a core case fact affecting the court’s judgment. However, during the trial in the first instance court, until the first instance judgment was made on January 4, 2023, Company 1 never informed the first instance court of this key fact, leading to the first instance court making an erroneous judgment based on the claims before the amendment. After entering the second instance procedure of the Supreme People’s Court, Company 1 also failed to provide a reasonable explanation for its concealment. In this regard, the Supreme People’s Court clearly determined that Company 1’s behavior violated the principle of good faith, constituted the concealment of basic facts of the case, and “deliberately made false statements to obstruct the People’s Court’s trial,” and directly led to the revocation of the first instance judgment. The circumstances were relatively serious, so judicial penalties were imposed.

7. Obligation to submit related cases

Original text of the provision:

Article 7

The People’s Court may require the parties to submit information on related cases of the patent in question. If a party refuses to submit such information within a reasonable period without justifiable reason, the People’s Court may order that the party bear the corresponding adverse consequences.

Commentary:

Articles 7 and 6 both fall under the regulatory scope of good faith obligations in patent litigation, but their regulatory scopes are clearly distinct. Article 6 focuses on the specific fact of changes in claims during patent invalidation proceedings, emphasizing the disclosure of key facts in a scenario where litigation and invalidation proceedings run concurrently. Article 7, however, transcends the limitations of a single procedure, expanding the scope of disclosure obligations to “all related cases of the patent in question.” However, the scope of “related cases” is not further defined here. We believe a broad interpretation is more appropriate, meaning that “related cases” include ownership disputes, infringement lawsuits, authorization and confirmation procedures, and administrative cases related to the patent in question.

The outcome of these cases may directly affect the factual findings of the case (such as patent stability, the continuity of infringement, and the parties’ subjective malice). However, the exact scope of “related cases” requires further practical feedback after the promulgation of judicial interpretation. Therefore,we suggest further clarification of the meaning of “related cases” in the judicial interpretation. Regardless of how the scope of “related cases” is defined, the promulgation of Article 7 signifies that the good faith disclosure obligation in patent litigation is no longer limited to specific procedural facts but covers the entire chain of case information related to the patent in question, forming a more complete integrity constraint system.

Article 7 is fundamentally derived from Article 4 of the Provisions of the Supreme People’s Court on Several Issues Concerning Intellectual Property Courts, but its scope of application has been expanded. Article 4 of the Provisions of the Supreme People’s Court on Several Issues Concerning Intellectual Property Courts stipulates that: “Intellectual Property Courts may require parties to disclose information related to the ownership, infringement, authorization, and confirmation of rights of the intellectual property involved in the case. If a party refuses to disclose information truthfully, it may be considered as a factor in determining whether it has followed the principle of good faith and whether it has abused its rights.”

The introduction of Article 7 represents a further optimization of the aforementioned rules.First, it expands the scope of implementing entities. The implementing entities are extended from “intellectual property courts” to all “People’s Courts,” meaning that regardless of whether it is an intellectual property court, the court has the right to require parties to submit information on related cases.Second, it clarifies the rigid legal consequences. The consequence of a party “refusing to submit information without justifiable reason” is upgraded from a “considered as a factor” to “may order that the party bear the corresponding adverse consequences,” giving the courts stronger regulatory tools and enhancing the binding force of obligations.

There are already judicial documents in the past that have applied this article. In case (2022) Zui Gao Fa Zhi Min Zhong No. 1290, during the trial, the Supreme People’s Court served Heng Company with a “Notice of Disclosure of Information on Related Cases” and a “Table of Information on Related Cases”, clearly requiring it to truthfully disclose the situation of nationwide related cases. However, the information disclosed by Heng Company was clearly inconsistent with the situation ascertained by the court ex officio, and Heng Company explicitly refused to provide supplementary information. In response, the court ruled that: “Heng Company has engaged in dishonest litigation behavior in this case, and it should bear the corresponding adverse legal consequences. On this basis, this court has adjusted the punitive damages multiplier in this case accordingly.” We believe that with the release of the Draft Interpretation III on Patent Infringement Disputes,the obligation of good faith in patent litigation will have a wider scope of application.

8. Interested parties to file lawsuits

Original text of the provision:

Article 8

The interested parties stipulated in Article 65 of the Patent Law include the licensees of patent licensing agreements and the legal successors of patent rights.

A licensee under an exclusive licensing agreement may file a lawsuit independently in a People’s Court. A licensee under a sole licensing agreement may file a lawsuit jointly with the patentee, or may file a lawsuit independently if the patentee does not file a lawsuit. A licensee under an ordinary licensing agreement may file a lawsuit independently with the express authorization of the patentee.

If damages claimed by a licensee under an exclusive licensing agreement are supported, the People’s Court shall not support the patentee’s claim for damages in other lawsuits concerning the same act, unless the patentee can prove that the infringement caused other damages to him.

Commentary:

Regarding the scope of interested parties and the litigation capacity of multiple types of licensing contracts, relevant judicial interpretations of the Trademark Law and the Anti-Unfair Competition Law have already made provisions. The revision of the Draft Interpretation III on Patent Infringement Disputes is basically consistent with other previous judicial interpretations related to intellectual property rights.

Article 4 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases stipulates that: “The interested parties stipulated in Article 60.1 of the Trademark Law include licensees of registered trademark licensing agreements and legal heirs of registered trademark property rights. When the exclusive right to use a registered trademark is infringed, the licensee of an exclusive licensing agreement may file a lawsuit with the People’s Court; the licensee of a sole licensing agreement may file a lawsuit jointly with the trademark registrant, or may file a lawsuit independently if the trademark registrant does not file a lawsuit; the licensee of an ordinary licensing agreement may file a lawsuit with the express authorization of the trademark registrant.”

Article 15 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases stipulates that: “For acts infringing trade secrets, if the licensee of an exclusive licensing agreement files a lawsuit, the People’s Court shall accept the case in accordance with the law. If the licensee and the right holder of a sole licensing agreement jointly file a lawsuit, or if the licensee files a lawsuit independently without the right holder filing a lawsuit, the People’s Court shall accept the case in accordance with the law. If the licensee and the right holder of an ordinary licensing agreement jointly file a lawsuit, or if the licensee files a lawsuit independently with the written authorization of the right holder, the People’s Court shall accept the case in accordance with the law.”

Compared with these clauses, Article 8 of the Draft Interpretation III on Patent Infringement Disputes further adds an exclusive provision on the claim for compensation by the licensee under an exclusive license,explicitly stating that after the licensee has received compensation, the patentee may not claim compensation again for the same infringement.

9.  Patent transferee to file patent infringement lawsuits

Original text of the provision:

Article 9

If a transferee, authorized by the transferor, files a lawsuit in its own name against an infringement that occurred before the patent transfer registration date, the People’s Court shall review the case.

Commentary:

After a patent right is transferred, whether the transferee can file a lawsuit for previous infringement is a common issue in practice. For example, in the series of cases between AUX and Gree (related case numbers: (2023) Zui Gao Fa Zhi Xing Zhong No. 37, (2022) Zui Gao Fa Zhi Min Zhong No. 255 and 256, (2022) Zui Gao Fa Zhi Min Zhong No. 2507 and 2508), in 2018, AUX purchased a “compressor” invention patent (patent No. 00811303.3) from Toshiba. Subsequently, based on this patent, AUX filed multiple infringement lawsuits in several intermediate courts, totaling RMB270 million, alleging that four air conditioners manufactured and sold by Gree infringed its patent rights. Among them, after the transfer was completed, Toshiba issued a “Letter of Commitment” confirming that it “agrees to transfer the patent rights to AUX and at the same time transfer the right to pursue infringement liability and obtain damages for third-party infringements that occurred before the transfer to AUX.”

It is against this practical background that the Draft Interpretation III on Patent Infringement Disputes specifically added Article 9. On the one hand, it clarifies the prerequisite for the transferee to claim infringement liability before the transfer, which requires explicit authorization from the transferor, thus avoiding an expansionary or restrictive interpretation of the scope of the transfer of rights. On the other hand, it clarifies the review obligation of the People’s Court, that is, for such lawsuits filed by the transferee based on authorization, the court should review the authorization in accordance with the law to prevent the transferee from abusing its rights and engaging in malicious litigation.

10. Prior art defect defense

Original text of the provision:

Article 10

If the accused infringing technical solution has the prior art defects that the patent is meant to overcome as described in the specification, the People’s Court shall determine that it does not fall within the scope of patent protection.

Commentary:

Article 10 of the Draft Interpretation III on Patent Infringement Disputes is not new to the draft for comment, and its earliest appearance can be traced back to the judicial interpretation drafting process in 2009. In 2009, Article 2.2 of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (Draft for Public Comment) explicitly stated that: “the scope of patent protection should conform to the inventive purpose of the patent and should not include technical solutions of the defects or deficiencies of the prior art that the patent is meant to overcome.” However, this clause was ultimately not adopted by the judicial interpretation.

In 2014, Article 6 of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (II) (Draft for Public Comment) reiterated this provision, stating that: “The interpretation of the claims by the People’s Court shall conform to the inventive purpose of the patent. If the accused infringing technical solution has defects in the prior art that the patent is meant to overcome, the People’s Court shall determine that it does not fall within the scope of protection of the patent right.” Similarly, this provision did not become the final judicial interpretation.

In the process of drafting the Draft Interpretation III on Patent Infringement Disputes, this clause was once again included in the draft for comments. Compared with the previous two versions, this draft for comments abandons the interpretation of the scope of protection centered on “the inventive purpose of the patent” and instead adopts an exclusionary legislative model to directly set exceptions to non-infringement.

The previous two versions of the clause started by interpreting the claims and defining the scope of protection, and derived the conclusion of excluding defective technical solutions; while the clause in this draft for comments directly bypasses the claim interpretation stage, takes “the prior art defects that the patent is meant to overcome as described in the specification” as the constituent element, and directly arrives at the conclusion of non-infringement that “does not fall within the scope of protection”, forming an independent standard for judging exceptions to non-infringement.

11. The principle of estoppel

Original text of the provision:

Article 11

If the accused infringer can prove that the restrictive modifications or statements made by the patent applicant or patentee to the claims, specification, and drawings during the patent grant and confirmation procedure were not explicitly denied, the People’s Court shall not support the patentee’s claim in a patent infringement dispute to include the aforementioned restrictive parts within the scope of patent protection.

Commentary:

Article 11 of the Draft Interpretation III on Patent Infringement Disputes is also not new to the draft for comments, and it can also be traced back to the judicial interpretation drafting process in 2009. In 2009, Article 7 of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (Draft for Comments) clearly stated that: “In patent granting or invalidation proceedings, if the patent applicant or patentee voluntarily or at the request of the examiner makes restrictive modifications or statements to the claims, and the patentee claims in patent infringement litigation that the scope of patent protection includes the abandoned technical solution, the People’s Court shall not support it.”

Comparing Article 11 of this Interpretation, the core regulatory logic of both is completely consistent, both pointing to the principle of estoppel in the granting and confirmation of patent rights and infringement lawsuits. This prohibits patent holders from proactively making restrictive modifications or statements regarding the scope of their rights during the granting and confirmation stage to obtain patent authorization or maintain the validity of the patent, only to later renege in infringement lawsuits and attempt to reinstate previously abandoned technical solutions within the scope of patent protection. Such behavior violates the principle of estoppel in patent litigation.

However, compared to the previous draft for comments which required evidence of “restrictive modifications or statements,” the Draft Interpretation III on Patent Infringement Disputes further clarifies that the condition of “the restrictive modifications or statementswere not explicitly denied” must be met for the principle of estoppel to apply. Here, “not explicitly denied” mainly refers to the absence of explicit rejection by the examiner. In practice, this means that if the examiner has not explicitly denied the applicant’s or patentee’s relevant modifications or statements in the examination history, these modifications or statements can be used to exclude the corresponding scope of protection.

The relevant adjudication rules have been practically applied in judicial practice. For example, in case (2023) Zui Gao Fa Zhi Min Zhong No. 607, the Supreme People’s Court held that: “the right holder shall exercise the right in accordance with the principle of good faith... On the one hand, the right holder emphasized in the invalidation administrative procedure that the patent ‘does not require the combination of spring, fixing buckle and fixing groove’ and ‘can achieve rotation by the working principle of the rocker itself and can maintain a stable state with one end raised and the other end lowered’, in order to ‘distinguish’ from the relevant prior art; on the other hand, in this case, the right holder argued for the application of the principle of equivalents, arguing that the accused infringing product, which relies on the positioning and maintaining structure (including spring) to maintain stability, constitutes infringement, which obviously violates the principle of estoppel.”Article 11 of the Draft Interpretation III on Patent Infringement Disputes helps to improve the specific connotation of the principle of estoppel under the existing legal framework in China.

12. Specific technical solutions that are intentionally excluded are not protected

Original text of the provision:

Article 12

If those skilled in the art can determine by reading the claims, specification, etc., that the claims intentionally exclude a specific technical solution, and the patentee claims that the specific technical solution falls within the scope of patent protection, the People’s Court shall not support such claim.

Commentary:

This clause originates from the “Restrictions on the Application of the Principle of Equivalents to the Intentional Exclusion Rule” in the Summary of the Judgments of the Intellectual Property Court of the Supreme People’s Court (2020) ((2020) Zui Gao Fa Zhi Min Zhong No. 1310, Appellant Shenzhen Xinhualong Technology Co., Ltd. v. Appellee DENG Yuzhi, Dispute over Infringement of Utility Model Patent Rights). This typical case holds that: “if those skilled in the art, after reading the claims and specification, believes that the patent applicant or patentee intentionally excludes a specific technical solution by specifically emphasizing the meaning of a certain feature in the claims, the excluded technical solution should not be included in the scope of patent protection by applying the principle of equivalents.”

Article 12 of the Draft Interpretation III on Patent Infringement Disputes has two significant differences from the adjudication rules of the aforementioned typical case:

First, the typical case takes “specifically emphasizing the meaning of a certain feature in the claims” as the key premise for determining intentional exclusion, that is, the intention to exclude must be corroborated by the precise expression of specific terms in the claims; while Article 12 abandons this formal requirement and takes “those skilled in the art can determine by reading the claims, specification, etc., that the claims intentionally exclude a specific technical solution” as the core standard, and no longer takes “specifically emphasizing the meaning of a certain feature” as a necessary condition.

Second, the application of the rule is no longer limited to the doctrine of equivalents. The key points of the typical case only explicitly limit the application of the intentional exclusion rule to the doctrine of equivalents, that is, the rule can only be applied when the rights holder attempts to include the excluded technical solution within the scope of protection through the doctrine of equivalents. However, Article 12 does not specify the type of infringement, which seems to indicate that regardless of whether the accused technical solution is “identical” or “equivalent” to the technical solution recited in the claims, the rights holder’s claim that it falls within the scope of protection will not be supported.

13.  Situations that do not constitute functional characteristics

Original text of the provision:

Article 13

If a technical feature in a patent claim limits a function or effect, and limits or implies a specific structure, component, step, condition, or their relationship to that function or effect, the People’s Court shall determine that the technical feature does not constitute a functional feature.

Commentary:

This provision originates from the patent infringement dispute case involving Valeo's “wiper connector” patent, previously represented by Fangda’s Shanghai office ((2019) Zui Gao Fa Zhi Min Zhong No. 2). This case was the first case adjudicated by the Intellectual Property Court of the Supreme People’s Court, and was subsequently included in the Summary of the Judgments of the Intellectual Property Court of the Supreme People’s Court (2019) and became Guiding Case No. 115. In this Guiding Case, the Supreme People’s Court held that: “if a certain technical feature of a patent claim has already defined or implied a specific structure, component, step, condition, or the relationship between them, even if the technical feature also defines the function or effect it achieves, it does not fall under the category of functional features as referred to in Article 8 of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (II).” The Draft Interpretation III on Patent Infringement Disputes is basically consistent with the judgment principles of the Guiding Case.

This provision, together with Article 8 of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (II) promulgated in 2020, forms a complementary regulatory system of positive definition and negative exclusion, jointly improving the standards for identifying functional features. Article 8.1 of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (II) clarifies the definition of functional features from a positive perspective: “A functional feature refers to a technical feature that limits the function or effect of a structure, component, step, condition, or the relationship between them in an invention, except where those skilled in the art can directly and clearly determine the specific implementation method for achieving the above function or effect simply by reading the claims.” The relevant provisions of the Draft Interpretation III on Patent Infringement Disputes supplement this from a negative perspective, clarifying the specific circumstances under which something “does not constitute a functional feature,” providing further guidance for judging functional features.

14. Specific rules and boundaries of prior art defense

Original text of the provision:

Article 14

If the accused infringer, for the purpose of production and operation, solidifies the substantive content of the patented method into the accused infringing product, and this plays an irreplaceable role in reproducing the patented technical solution, the People’s Court may determine that the accused infringer has implemented the patented method.

Commentary:

This rule originates from Guiding Case No. 159, the dispute over infringement of invention patent rights between Shenzhen Dunjun Technology Co., Ltd. and Shenzhen Jixiang Tengda Technology Co., Ltd. et al. The key point of the judgment in that case was that “if the accused infringer, for the purpose of production and operation, solidifies the substantive content of the patented method into the accused infringing product, and this act or its result plays an irreplaceable substantive role in fully covering the technical features of the patent claims, and the end user can naturally reproduce the patented method process when using the accused infringing product normally, then the accused infringer should be deemed to have implemented the patented method and infringed the patentee’s rights.”

The main problem encountered in the Tengda case was that, for method patents, the steps might be performed independently by multiple entities without communication or awareness of the steps implemented by other entities. In such cases, determining joint infringement by multiple entities could be problematic. Prior to the Tengda case, determining infringement in patent infringement disputes involving multiple entities implementing the patented solution was a thorny issue in judicial practice. To address this, the Supreme People’s Court introduced the concept of “substantive content solidification” in the Tengda case, resolving the issue of infringement determination when all steps of a patented method involve multiple entities.

Compared to the guiding cases, Article 14 of the Draft Interpretation III on Patent Infringement Disputes further expands the scope of application, no longer requiring that “the end user can naturally reproduce the patented method process when using the accused infringing product normally.” This modification may be because some method patents may not involve end users, thus further clarifying the scope of application of this adjudication rule.

15. Unclear claims

Original text of the provision:

Article 15

If those skilled in the art, by reading the claims, specification, patent examination files, reference books, textbooks, etc., are still unable to determine the specific meaning of the technical terms in the claims, resulting in the inability to make an infringement comparison with the allegedly infringing technical solution, the People’s Court shall rule to dismiss the claim filed by the rights holder based on the claims.

Commentary:

This clause originates from Guiding Case No. 55, a dispute over infringement of utility model patent rights between Bai Wanqing and Chengdu Nanxun Items Marketing Service Center et al. The key point of the judgment in that case was that: “the scope of patent protection should be clear. If the wording of the claims of a utility model patent has obvious flaws, and the specific meaning of the technical terms in the claims cannot be determined in conjunction with the patent specification, drawings, common knowledge in the field, and relevant prior art, resulting in an unclear scope of patent protection, then because a substantial comparison with the accused infringing technical solution cannot be made, the accused infringing technical solution cannot be deemed to constitute infringement.” This clause is not significantly different from the judgment rules of the Guiding case, but elevating the judgment rules of the Guiding cases to normative provisions in the draft judicial interpretation has significant institutional value.

First, this clause aligns the systems for patent invalidation grounds with those for infringement defenses. It explicitly grants the accused infringer the right to directly raise the defense of “unclear scope of protection in the claims” during infringement proceedings. Even if a party’s invalidation request based on “unclear scope of protection in the claims” fails to gain support from the CNIPA in invalidation proceedings, the party still has the opportunity to request the court to adjudicate this issue in infringement proceedings. This arrangement can reduce litigation costs for parties.

Second, this clause strengthens the judicial orientation of “not protecting patents whose scope of protection cannot be clearly defined,” forcing patent holders to standardize the use of technical terminology during the patent drafting stage, improve the quality of patent documents, and reduce infringement disputes arising from unclear claims from the outset.

16. Inspection of the allegedly infringing products

Original text of the provision:

Article 16

If a party applies for an inspection of the allegedly infringing product, the People’s Court may require the parties to first negotiate and determine an inspection plan; if the negotiation fails, the People’s Court shall determine the plan.

If there are objective obstacles to inspecting the physical object of the allegedly infringing product, making it impossible to use the physical object as a basis for technical comparison, and the rights holder claims that the allegedly infringing technical solution can be determined based on the technical drawings, instructions and other technical data used to manufacture the physical object of the allegedly infringing product, the People’s Court may make a determination based on such technical data and common sense, unless the alleged infringer submits contrary evidence sufficient to refute it.

Commentary:

Previously, there were no specific provisions regarding inspection in the Patent Law and related laws. The drafting of Article 16 of the Draft Interpretation III on Patent Infringement Disputes fills the institutional gap in the rules for inspection procedures and alternative technical comparison schemes in patent infringement disputes, and is of great value in standardizing judicial practice and balancing the rights and obligations of the parties.

Article 16 clarifies that when a party applies for an inspection of the allegedly infringing product, the People’s Court may require prior negotiation to determine the inspection plan. If the negotiation fails, the court will determine the plan ex officio. This clause respects the parties’ procedural autonomy while also reducing procedural adversariness and improving trial efficiency. Inspections in patent infringement cases are highly technical; the core technical features and key comparison points of the product in question are often best understood by the parties themselves. Having both parties negotiate the scope, methods, steps, and precautions for the inspection can prevent the court from deviating from the inspection focus due to technical misunderstandings.

In practice, disagreements over inspection plans often become a reason for parties to delay litigation. The negotiation-first rule can encourage both parties to focus on the core dispute, reducing unnecessary procedural objections. Even if the negotiation fails, the plan determined by the court ex officio, having undergone prior negotiation, is more likely to gain the understanding and cooperation of the parties, thereby accelerating the inspection process and preventing the case from being delayed due to the inspection procedure.

In patent infringement disputes, the physical evidence of the allegedly infringing product is the core basis for comparing technical features. However, in practice, objective obstacles such as the product being destroyed or sealed, involving third-party trade secrets, or being in circulation and difficult to obtain in person, often prevent physical inspection, leading to a standstill in technical comparison and a stalemate in the trial. To address this issue, the clause explicitly states that alternative paths for identifying the allegedly infringing technical solution should be based on technical drawings, specifications, and other technical materials combined with common knowledge, thus reducing the burden of proof for the rights holder.

17. Use of state reference diagrams

Original text of the provision:

Article 17.

The People’s Court may determine the scope of protection of a design patent by combining the brief description of the design. If the pictures or photographs of a design patent for a product with changeable states are clearly inconsistent with the brief description, a state reference drawing of the product in use should be considered.

Commentary:

This clause further confirms previous Supreme Court precedents. This rule originates from the infringement of a design patent right case between the petitioner Beijing Huajiesheng Electromechanical Equipment Co., Ltd. and the respondent Dingsheng Door Control Technology Co., Ltd. ((2018) Zui Gao Fa Min Zai No. 8) in the Summary of the Annual Report on Intellectual Property Cases of the Supreme People’s Court (2018). In this case, the Supreme People’s Court held that: “the brief description of a design has an interpretative effect on the scope of protection of a design patent. Where disregarding the influence of the state reference drawing of the design on the scope of protection would result in a clear contradiction with the brief description of the design, the People’s Court should consider the state reference drawings when determining the scope of protection of the design patent.”

It is worth noting that this rule is an important supplement to the existing patent law. Article 64.2 of the Patent Law of the People’s Republic of China stipulates the scope of protection for design patents, namely: “The scope of protection for a design patent right shall be based on the design of the product as shown in the pictures or photographs, and the brief description may be used to interpret the design of the product shown in the pictures or photographs.” Therefore, according to the Patent Law, the brief description is an important basis for confirming the content and scope of design protection. However, whether the state reference drawings constitute a basis for determining the scope of design patent protection is controversial at the legal level. Especially for products with changeable states, if there is a clear inconsistency with the brief description, how to determine the specific content of the design is a legal gap.

Based on these cases, state reference drawings also serve as a basis for determining the scope of protection for design patents, but their systematic status is slightly inferior to that of pictures, photographs, and brief descriptions. State reference drawings should only be considered when there is a conflict between the previously referred-to contents. Article 17 of the Draft Interpretation III on Patent Infringement Disputes solidifies the rules established in the aforementioned typical cases in the form of judicial interpretation.

18. Inferring design features of remaining partial views based on partial views

Original text of the provision:

Article 18

If the accused infringing product can only display a partial view, but a general consumer can infer the design features of the remaining partialviews based on that partial view and the characteristics of the product, the People’s Court may use it as a basis for infringement comparison, unless the accused infringer submits contrary evidence sufficient to refute it.

Commentary:

The concept of “general consumer” is crucial in design patent infringement cases, with typical cases arising almost every year. Article 10 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Patent Infringement stipulates that: “People’s Courts shall determine whether designs are identical or similar based on the knowledge level and cognitive ability of general consumers of patented designs.” The Draft Interpretation III on Patent Infringement Disputes further clarifies the cognitive level and cognitive ability of general consumers based on this article.

In design patent infringement disputes, the accused infringing product often fails to present all views for various reasons, resulting in insufficient evidence for traditional infringement comparison. Article 18 explicitly allows courts to use incomplete views as a basis for comparison when presumption conditions are met. This effectively solves the practical dilemma of being unable to compare views when they are incomplete, provides more comprehensive support for rights holders to protect their rights, and prevents infringers from using view defects to evade legal responsibility.

19. Specific rules and boundaries of prior art defense

Original text of the provision:

Article 19

If the defendant asserts a prior art defense based on a combination of two or more different technical solutions recorded in the same prior art document, the People’s Court shall not support it.

If a defendant asserts a prior art defense based on content recorded in different parts of the same prior art, and such content is mutually interpretable in meaning, mutually supportive in technology, and jointly solves a technical problem, the People’s Court should support it.

If a defendant asserts a prior art defense based on a combination of prior art described in a comparative document and common knowledge, and such defense is something that those skilled in the art could conceive of without creative effort, the people’s court should generally support it.

Commentary:

Article 19 of the Draft Interpretation III on Patent Infringement Disputes makes a groundbreaking revision to the rules for applying the prior art defense. By clarifying the applicable boundaries of the prior art combination defense, it substantially expands the scope of application of the prior art defense in patent infringement litigation.This adjustment differs from the rules for determining the validity of patents and will have a profound impact on the adjudication logic of patent infringement litigation, the parties’ evidentiary strategies, and even the patent protection system.

Currently, prior art defense generally follows Article 14 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Patent Infringement, which states that: “if all the technical features that are accused of falling within the scope of patent protection are the same as or have no substantial difference from the corresponding technical features in a prior art solution, the People’s Court shall determine that the technology implemented by the accused infringer belongs to the prior art as stipulated in Article 62 of the Patent Law.” According to this judicial interpretation, the standard for prior art defense is generally similar to the novelty standard in patent evaluation.

One of the most important and fundamental principles in novelty assessment is the principle of individual comparison. Section 3.1 of Chapter 3, Part II of the Patent Examination Guidelines stipulates that: “each claim of an invention or utility model patent application shall be compared separately with each prior art or the relevant technical content of an invention or utility model that was applied earlier and published later. It shall not be compared with a combination of several prior art or inventions or utility models that were applied earlier and published later, or with a combination of multiple technical solutions in a single prior art document. That is, the principle of individual comparison applies to determining the novelty of an invention or utility model patent application.”

The Patent Examination Guidelines explicitly exclude “comparison with a combination of multiple technical solutions in a single prior art document,” meaning that combined comparisons cannot be used in novelty assessments. However, the Draft Interpretation III on Patent Infringement Disputes explicitly states that “content recorded in different parts of the same prior art” that is “mutually interpretable in meaning, mutually supportive in technology, and jointly solves a technical problem” can be combined to assert a prior art defense. The Draft Interpretation III on Patent Infringement Disputes substantially expands the scope of application of prior art defenses.

Article 19.3 of the Draft Interpretation III on Patent Infringement Disputes classifies the claim of combining with common knowledge into the prior art defense, rather than directly adopting the “direct substitution of conventional means” standard in the novelty evaluation.

The key point of the judgment in a patent-related administrative dispute case in the People’s Court Case Database, a telephone company v. the CNIPA and a third party technology company (entry number: 2023-09-3-024-001), held that: “‘direct substitution of conventional means ‘must at least meet the following requirements: first, the relevant technical means must be a conventional technical means in the field; second, the substitution of the relevant technical means must be a ‘direct substitution.’ ‘Direct substitution’ requires not only that the relevant technical means can be substituted, but also that replacing the different technical means in the prior art of the invention in question does not affect the coordination and cooperation between the technical means and other technical features. For those skilled in the art, even if the substitution of the relevant technical means can be easily conceived, if the substitution requires adaptive adjustments to other technical features that cooperate with the technical means, then although the invention in question may lack inventiveness, it should not be considered lacking in novelty.” As can be seen from the above case, only if “the substitution of the relevant technical means can be easily conceived” can such a substitution method be considered lacking in novelty; if “adaptive adjustments are required to other technical features that cooperate,” then it possesses novelty.

While Article 19.3 of the Draft Interpretation III on Patent Infringement Disputes acknowledges that a “combination of prior art and common knowledge” can be used to assert a prior art defense, it imposes the restriction that such a defense must be “something that those skilled in the art could conceive of without creative effort.” However, whether this requirement of “something that those skilled in the art could conceive of without creative effort” aligns with the standard of “direct substitution of conventional means” established in the aforementioned case remains to be seen in further practice. In any case, the method of “combination of prior art and common knowledge” has already expanded the scope of applicable prior art defenses.

20. Timing of raising prior art defense

Original text of the provision:

Article 20

If a party did not assert a prior art or prior design defense in the first instance proceedings but raised it in the second instance proceedings, the People’s Court shall review it. If a party did not assert a prior art or prior design defense in either the first or second instance proceedings but raised it in the trial supervision proceedings, the People’s Court shall not review it.

If a party’s defense of prior art or prior design is not supported, and the party submits new evidence in subsequent proceedings to supplement and prove the same prior art or prior design, the People’s Court shall review such evidence.

Commentary:

This clause clarifies - to some extent - the boundaries of new grounds and evidence related to prior art defenses that parties can raise in “appeal proceedings” and “retrial proceedings.” Previously, the Supreme People’s Court had already confirmed in typical cases whether the court needed to review prior art defenses raised in retrial proceedings. Specifically, the database case No. 2023-13-2-160-075 ((2019) Zui Gao Fa Zhi Min Shen No. 1) held that: “if a party does not appeal after the first-instance judgment and raises a prior art defense based on new evidence in the retrial review proceedings, their prior art defense claim will not be reviewed.” This case was also included in the Summary of Judgments of the Supreme People’s Court Intellectual Property Court (2019). However, this case only provided guidance for the retrial proceedings and did not provide clear rules on how to handle other procedures.

Under the existing framework of the Civil Procedure Law, although no provisions explicitly state whether the scope of review for an appeal can exceed the claims already made by the parties in the first instance, a comprehensive interpretation of the existing provisions generally leads to the conclusion that the appellate court does not directly hear newly raised claims, but can review new grounds and evidence presented by the parties within the scope of the focus of the existing claims.

• First, Article 175 of the Civil Procedure Law of the People’s Republic of China stipulates that: “the People’s Court of second instance shall review the relevant facts and applicable laws of the appeal request.” That is, the scope of review in the second instance procedure should be directed at the “appeal request” raised by the parties. At the same time, Article 321 of the Supreme People’s Court’s Interpretation on the Application of the Civil Procedure Law of the People’s Republic of China makes a similar provision: “the People’s Court of second instance shall conduct its hearing around the appeal request of the parties.”
• Second, although Article 176 of the Civil Procedure Law of the People’s Republic of China stipulates whether a hearing is required in the second instance procedure, it explicitly states that “if no new facts, evidence, or grounds are presented, and the People’s Court deems a hearing unnecessary, it may proceed without a hearing,” which indirectly confirms that the second instance procedure allows parties to present new grounds and evidence.
• Third, Articles 324 and 326 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China clearly state that for new claims raised in the second instance, the court of second instance may organize mediation, and if mediation fails, the case should be remanded for retrial.

Article 20 of the Draft Interpretation III on Patent Infringement Disputes further clarifies the boundaries for courts to review new claims, grounds, and evidence in second-instance proceedings, based on the existing legal framework and case precedents.

• First, it clarifies the rules for handling appeals: if a party did not assert a prior art/design defense in the first instance but raises it for the first time in the second instance, the people’s court shall review it.
• Second, it clarifies the exclusion rules for retrial proceedings: regardless of whether a party appeals, if they did not assert the defense in either the first or second instance proceedings, and raise it again in the retrial proceedings, the People’s Court will not review it.

The Draft Interpretation III on Patent Infringement Disputes does not entirely exclude the overdue submission of new evidence. If the new evidence is only used to supplement the existing technology, such evidence can still be submitted. Article 68 of the Civil Procedure Law of the People’s Republic of China stipulates that: “if a party provides overdue evidence, the People’s Court shall order him/her to explain the reasons; if he/she refuses to explain the reasons or the reasons are not valid, the People’s Court may, depending on the circumstances, refuse to accept the evidence, or accept the evidence but issue a reprimand or impose a fine,” thus establishing the general rules for handling overdue evidence submission.

The relevant clause makes special adjustments to the aforementioned rule on overdue evidence submission, clarifying two types of situations where “review is required”: first, if a party raises a prior art/design defense for the first time in the second instance, the People’s Court should review the defense and the related evidence; second, if a party’s previous prior art defense was not supported, and new evidence is submitted in subsequent proceedings to strengthen the same defense, the People’s Court should also review this strengthening evidence. This provision breaks through the general logic of handling overdue evidence submission and reflects the special considerations for prior art defenses in intellectual property disputes.

21. Prior application for non-infringement defense

Original text of the provision:

Article 21

If a party asserts a non-infringement defense based on a prior application filed with the patent administration department of the State Council, and all technical features of the accused infringing technical solution have been disclosed separately and completely in the prior application, the People’s Court shall determine that there is no patent infringement.

Commentary:

To accurately understand this provision, it is first necessary to clarify the legal definitions of the two core concepts in the patent application confirmation process: “prior art” and “conflicting application.” According to Article 22.5 of the Patent Law of the People’s Republic of China, “prior art” refers to technology known to the public domestically or internationally before the filing date. “Conflicting applications”, as defined in Article 22.2 of the Patent Law of the People’s Republic of China, refer to any application filed by any entity or individual with the patent administration department of the State Council for the same invention or utility model before the filing date, and published in patent application documents published or announced after the filing date. Therefore, the core difference between prior art and conflicting application lies in whether it was disclosed before the date of the patent application in question.

Article 67 of the Patent Law of the People’s Republic of China stipulates that: “in patent infringement disputes, if the accused infringer has evidence to prove that the technology or design implemented by it belongs to prior art or prior design, it does not constitute patent infringement.” For a long time, in infringement litigation, the prior art defense could only use prior art, that is, technology disclosed before the date of the patent application in question, and there was a lack of a system design for conflicting applications similar to those in patent confirmation.

The promulgation of this article clarifies that prior applications can be used as one of the bases for non-infringement defenses, thus remedying the inconsistency in standards between the confirmation and infringement procedures. At the same time, whether the connotations of prior applications mentioned in this article are completely consistent with conflicting applications in invalidation still needs further clarification through subsequent judicial practice or judicial interpretation.

22. The significance of markings in a legitimate source defense

Original text of the provision:

Article 22

If the accused infringing product lacks the manufacturer’s name, address, product quality inspection certificate, or other markings, and the accused infringer claims that it constitutes “not knowing that it was an infringing product manufactured and sold without authorization of the patentee” as stipulated in Article 77 of the Patent Law, the People’s Court will not support such a claim, unless the accused infringer submits sufficient contrary evidence to refute it.

Commentary:

This clause further supplements the existing rules on the legitimate source defense. Specifically, it clarifies that if: “the accused infringing product lacks the manufacturer’s name, address, product quality inspection certificate, or other markings”, it cannot serve as factual evidence for asserting a legitimate source defense. Regarding the specific application of the legitimate source defense, based on Article 77 of the Patent Law, Article 25 of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Patent Infringement (II) had already stipulated that the accused infringer’s claim of “not knowing” means “actually not knowing and should not have known”. However, in practice, defining the boundary of “actually not knowing and should not have known” is not easy.

Article 22 of the Draft Interpretation III on Patent Infringement Disputes further refines the rules for the legitimate source defense established in the aforementioned judicial interpretation. It clarifies that the accused infringer cannot directly claim “not knowing” based on “the accused infringing product lacks the manufacturer’s name, address, product quality inspection certificate, or other markings”. Generally, the lack of markings on the accused infringing product may indeed imply a lack of information regarding the product’s origin. However, the very absence of this crucial information may cast doubt on the legitimacy of the product’s circulation. Furthermore, the fact that the relevant sellers are able to purchase and further promote the product demonstrates their awareness of its upstream origin. Article 22 adopts a strict stance, clarifying that the lack of key source information on the accused infringing product will prevent the “not knowing” requirement in the legitimate source defense from being met.

According to Article 77 of the Patent Law, the establishment of a legitimate source defense requires the simultaneous fulfillment of two requirements: “not knowing” and “being able to prove the legitimate source of the product.” In judicial practice, “not knowing” is generally easy to prove for distributors. Under typical factual models, the distributor’s “not knowing” requirement may be established before receiving a warning letter, notice, or even a court judgment from the right holder. Now, Article 22 seems to introduce a special default scenario where the “not knowing” requirement is not established, requiring the accused infringer, who lacks information about the product’s source, to proactively assume the burden of proof, demonstrating that they were not aware of or should have been aware of the relevant infringement.

23. Operators who can be identified as engaging in manufacturing activities

Original text of the provision:

Article 23

If the accused infringing product or promotional material bears the trademark, trade name, factory direct sales, brand self-operation, or other marks of the accused infringer and does not indicate other operators, or indicates that the accused infringer is the producer or distributor, and the rights holder claims that the accused infringer has carried out the manufacturing act, the People’s Court shall support it, unless there is contrary evidence proving that another person is the manufacturer.

Commentary:

This clause clarifies two categories of operators who can be identified as having engaged in manufacturing activities: (1) the sole operator indicated on the allegedly infringing product or promotional materials, and (2) operators indicated as producers, distributors, etc. This clause also serves as a confirmation of past judicial practice.

In past cases, some courts have held that the owner of the trademark on the allegedly infringing product can be presumed to have carried out the manufacturing act. Specifically, in the case (2017) Zui Gao Fa Min Zai No. 122 of the Supreme People’s Court’s Annual Report on Intellectual Property Cases (2017), the Supreme People’s Court pointed out that: “although the alleged infringer did not directly manufacture the allegedly infringing product, based on its control over the manufacturing act of others, the alleged infringer’s company name and exclusive product model marked on the final product, it can be presumed that the alleged infringer carried out the manufacturing act.”

It follows on from this that the relevant markings of the alleged infringer on the finished product are an important basis for presuming the identity of the manufacturer. This amendment further clarifies the burden of proof, that is, as long as the rights holder has pointed out that the sole operator to which the product is addressed is the alleged infringer, it does not need to provide evidence of the specific manufacturing act, thus reducing the burden of proof for the rights holder.

24. Judicial consequences of a valid defense of legitimate source

Original text of the provision:

Article 24

If the defense of legitimate source is established, and the rights holder requests the court to order the accused infringer to bear the reasonable expenses incurred in stopping the infringement, the People’s Court shall not support it.

(Option 2: If the defense of legitimate source is upheld, and the rights holder requests the court to order the accused infringer to bear the reasonable expenses incurred in stopping the infringement, the People’s Court may support appropriately based on the sales situation, unless the manufacturer of the infringing product has already borne reasonable expenses.)

Commentary:

Unlike other provisions in the Draft Interpretation III on Patent Infringement Disputes, Article 24 provides two possible amendments regarding the allocation of reasonable expenses after a legitimate source defense is established.

Article 77 of the Patent Law stipulates that: “anyone who uses, offers for sale, or sells a patent-infringing product for production or business purposes without knowing that it was manufactured and sold without the patentee’s permission, and can prove the legitimate source of the product, shall not be liable for damages.” Article 71.3 of the Patent Law stipulates that “the amount of damages shall also include reasonable expenses paid by the patentee to stop the infringement.” Therefore, based on these provisions, reasonable expenses are a form of liability for damages. Under the current Patent Law, if the defense of legitimate source is valid, then the defendant should not bear reasonable expenses.

However, this amendment offers two different proposals regarding whether reasonable expenses should still be borne. Proposal 1 follows the provisions of the Patent Law, clarifying that reasonable expenses are a form of liability for damages, while Proposal 2 substantially modifies the provisions of the Patent Law.

If Proposal 1 is adopted, when the legitimate source defense is established, the People’s Court will not support the rights holder’s claim for reasonable expenses incurred in stopping the infringement. Its advantage lies in fully demonstrating the legislative intent of the legitimate source defense to protect bona fide sellers and users. By completely exempting innocent parties from liability for expenses, it encourages market entities to actively fulfill their obligations to verify the quality of goods purchased. At the same time, the “one-size-fits-all” judgment standard reduces judicial discretion. This choice, to some extent, helps to unify judgment standards, improve trial efficiency, and compels rights holders to directly hold infringers accountable, thus combating infringement at its source. However, its disadvantages are also obvious. When the infringer is difficult to identify, whose whereabouts are unknown, or who lacks the ability to compensate, the rights holder’s reasonable expenses for protecting their rights will not be compensated. This may dampen their enthusiasm for protecting their rights.

If Proposal 2 is adopted, the People’s Court may appropriately support the rights holder’s reasonable expenses based on the sales situation of the accused infringer. The advantage of Proposal 2 is that it achieves a balance between the interests of the rights holder and bona fide sellers, preserving the protection of bona fide entities while providing the rights holder with a means of compensation for part of legal expenses, preventing them from suffering losses, and reflecting the principle of proportionality between fault and responsibility. Under this arrangement, judges can exercise flexibility and ensure the rights holder’s motivation to protect their rights when the manufacturer cannot be held accountable, thus more comprehensively combating the infringement chain. However, its disadvantage is that expressions such as “sales situation” and “support appropriately” lack clear quantitative standards, increasing the difficulty of judicial discretion. This may lead to inconsistent judgment standards. Furthermore, even if the accused infringer provides a legitimate source, they still need to provide evidence and defense on related matters, increasing their litigation burden, and there is also the risk that the rights holder may repeatedly claim reasonable expenses from both the manufacturer and the seller.

25. Typical types of malicious patent litigation

Original text of the provision:

Article 25

If a person knowingly initiates a patent infringement lawsuit with the aim of obtaining illegitimate benefits without legal or factual basis, and causes damage to others, he or she shall bear the liability for damages.

When determining whether a patent infringement lawsuit was filed maliciously, the People’s Court may consider the following factors:

(I) Knowingly obtaining patent rights based on existing technology or design, or obtaining patent rights through deception or concealment of important facts;

(II) Knowing that the patent right has been determined to be invalid, belong to another person as confirmed by an effective judgment, or that the term has expired;

(III) Where there is a clear lack of legal or factual basis, and where a party intentionally files patent infringement lawsuits at critical junctures - such as during another party’s equity financing, initial public offering, share issuances, business merger or acquisition, or participation in bidding - to delay or disrupt such proceedings; and

(IV) Other circumstances that may be considered malicious litigation.

Commentary:

In recent years, with the increasing number of malicious patent infringement lawsuits, the criteria for judging such cases have gradually become clearer. In November 2025, the Supreme People’s Court released typical cases on combating malicious intellectual property litigation. This batch of cases marked the first time the Supreme People’s Court had released a special collection of typical cases on malicious intellectual property litigation. The current Draft Interpretation III on Patent Infringement Disputes further summarizes the common categories of malicious patent litigation in practice. The specific summary is as follows:

• (I) Regarding the first point of knowingly obtaining a patent right that is unstable or improperly acquired. In case (2022) Yue Min Zhong No. 668, the court held that: “A design scheme identical to the patent in question appeared on Tencent Video before the application date. The interviewee in the video was Xiong Xing himself, and comments included Xiong Xing’s WeChat ID. It can be reasonably presumed that Xiong Xing should have known that the design had entered the public domain. Xiong Xing applied for a design patent with the CNIPA knowing that the basis of the right was unstable, and his behavior was not legitimate.” In case (2022) Wan Min Zhong No. 1544, the court held that: “Wuhan Hongshi Thermal Imaging Company knowingly applied for and obtained the patent despite being aware that the technology of the patent in question had been publicly disclosed by itself prior to the application date. It subsequently filed two lawsuits against its former business partner and industry competitor, Yantai Ruichuang Co., Ltd., among others. This demonstrates that its patent application was malicious, making it difficult to argue that the patent acquisition was legitimate or that the lawsuits were lawful.”In case (2024) Yue Min Zhong No. 4590, the court held that:“Company B, knowing that the basis for its patent application in the design patent infringement case No. 4230 was seriously flawed, still abused its litigation rights and insisted on filing a patent infringement lawsuit against Company A, causing Company A to suffer economic losses. This constitutes malicious filing of intellectual property litigation.”
•  (II) Regarding the second point where the patent has expired. In case (2022) Zui Gao Fa Zhi Min Zhong No. 1861, in March 2006, the utility model patent right for the “built-in digital display target flow meter” was terminated due to non-payment of annual fees. Dissatisfied with the termination of the patent right by the CNIPA, a Quanzhou company filed an administrative lawsuit with the Beijing Intellectual Property Court in 2017, and then applied to withdraw the lawsuit in 2018, which was granted. After the patent expired, the company filed another lawsuit. The Supreme People’s Court held that: “the Quanzhou company knew that its lawsuit lacked a legal basis, but still filed a third and fourth lawsuit, causing damage to the other party. It had the intent to cause damage and should be deemed to have committed malicious litigation.” This case was the “first” case in which the Intellectual Property Court of the Supreme People’s Court determined that the lawsuit constituted maliciously filing intellectual property litigation, and it was also selected as a typical case for governing malicious intellectual property litigation released by the Supreme People’s Court.
•  (III) Regarding the third point concerning the use of patent litigation to influence other procedures. In case (2023) Zui Gao Fa Zhi Min Zhong No. 2044, Jin Company filed an infringement lawsuit against Ling Company for infringing its patent right entitled “A Mixing Device” during Ling Company’s listing process, requesting Ling Company to compensate for economic losses of RMB23 million. Ling Company suspended its listing process due to its obligation to disclose litigation information during the listing review. Before the lawsuit, Jin Company applied to the CNIPA for a patent evaluation report on the patent in question, but the preliminary conclusion of the evaluation report was that it did not meet the conditions for granting patent rights. Jin Company did not voluntarily submit the report to court. The Supreme People’s Court, in its second instance judgment, held that: “the unstable legal basis, the dishonest act of concealing the patent evaluation report, the relatively easy infringement determination, the obviously excessive amount of compensation claimed, and the timing of the lawsuit which cannot be considered a coincidence, are sufficient to show that Jin’s company filed this patent infringement lawsuit not for legitimate rights protection, but to delay Ling’s company’s listing process and damage Ling’s rights and interests through the lawsuit, and should be deemed to constitute malicious litigation.” However, in another case, (2021) Zui Gao Fa Zhi Min Zhong No. 1353, the Supreme People’s Court made a contrary judgment on a similar situation. The Supreme People’s Court held that: “it is difficult to determine that Hunan company’s lawsuit clearly lacks a legal basis or factual basis; it is difficult to determine that Hunan company’s lawsuit was obviously malicious; Hunan company’s report to the China Securities Regulatory Commission was not fabricated or baseless, and did not violate legal provisions, so the relevant behavior is hardly obviously improper; Hunan company’s act of submitting the application to withdraw the lawsuit is a disposition of its right to sue, and is hardly improper. In summary, it is not sufficient to determine that it is malicious litigation.”

Using patent litigation to affect other procedures is not necessarily considered malicious litigation. The standard for determining whether a lawsuit is malicious lies in whether there is a clear lack of legal or factual basis.

26. Calculation of damages in malicious patent litigation

Original text of the provision:

Article 26

When hearing cases involving disputes over liability for damages caused by malicious intellectual property litigation, the People’s Court may determine the amount of compensation in accordance with the law, based on factors such as the degree of malice of the actor, the consequences of the damage, and the causal relationship.

Commentary:

Determining damages for malicious litigation has always been a thorny issue in practice. This clause aims to clarify the calculation standard for damages and provide guidance for judicial practice. In case (2023) Zui Gao Fa Zhi Min Zhong No. 869, the first-instance court awarded RMB300,000 in damages, and the second-instance court changed the judgment to award RMB1 million in damages. The Supreme People’s Court held that: “disputes over liability for damages arising from malicious intellectual property litigation are general torts, and the scope of its tort damages should be examined in accordance with the principle of full compensation, examining whether there is a legal causal relationship between the damages claimed by the plaintiff and the tortious act. The damages claimed by Company A include three parts, which this court describes as follows: First, regarding the loss of funds occupied. If the plaintiff maliciously files an intellectual property infringement lawsuit and freezes the defendant’s funds in a tort dispute constituting malicious litigation, the defendant has the right to claim compensation for the interest in the funds occupied.Second, regarding the loss of business opportunities. This should be examined by focusing on whether the defendant’s claim for lost business opportunities has a legal causal relationship with the plaintiff’s malicious litigation. If, after a malicious lawsuit, the defendant, fearing the expansion of infringement, proactively abandons business opportunities and refuses customer contracts or orders to avoid legal risks, the reasonable expected profit loss suffered as a result has a legal causal relationship with the malicious litigation, and the defendant has the right to claim compensation from the plaintiff.Third, regarding other losses. If a patent infringement lawsuit is determined to be malicious, the reasonable expenses incurred by the defendant in responding to the infringement lawsuit deemed malicious should also be considered losses caused to the defendant by the malicious litigation, and the plaintiff should compensate for them. This loss includes reasonable attorney fees, transportation expenses, and accommodation expenses incurred in responding to the litigation.”

Based on this case, the determination of the scope of damages for malicious intellectual property litigation, adhering to the principle of full compensation, primarily examines whether there is a legal causal relationship between the damages and the infringing act. In terms of the categories of compensation, this case established that losses due to capital occupation, lost business opportunities, and reasonable expenses are all within the scope of compensation.

In addition to considering the damage consequences and causal factors already determined in the aforementioned case, the Draft Interpretation III on Patent Infringement Disputes has added the factor of the degree of malice. However, how the degree of malice affects compensation still needs to be clarified in subsequent judicial practice.

27. Retroactive effect of patent invalidation decisions

Original text of the provision:

Article 27

Article 47 of the Patent Law stipulates that a “decision to invalidate a patent right” includes decisions to invalidate all claims of a patent right and decisions to invalidate only some claims of a patent right. The term “executed” in Article 47 of the Patent Law includes both full and partial execution.

If a patent infringement judgment or mediation agreement has been partially executed, the decision to invalidate the patent right will not have retroactive effect on that part, but will have retroactive effect on the unexecuted part.

Commentary:

This clause interprets the retroactive effect of patent invalidation decisions. Article 47.2 of the Patent Law of the People’s Republic of China stipulates that: “a decision to invalidate a patent right shall not have retroactive effect on patent infringement judgments or mediation agreements made and executed by the People’s Court before the patent right was invalidated, on decisions on handling patent infringement disputes that have been performed or enforced, or on patent implementation licensing contracts and patent right assignment contracts that have been performed.”

This amendment further clarifies that a “decision to invalidate a patent right” includes partial invalidation, and “executed” includes partial execution. However, it can be noted that Article 47 of the Patent Law, in addition to the “executed” situation, also includes the “performed” situation. Article 27, however, does not explicitly state whether partial performance also falls under the category of “performed.”

Similarly, in addition to “patent infringement judgments and mediation agreements”, Article 47 also stipulates “decisions on handling patent infringement disputes” and “patent implementation licensing contracts and patent right assignment contracts”. Article 27 also does not clarify whether partial performance and partial execution constitute “performance” and “execution” in these situations.

28. Invalidation Decision after judgment

Original text of the provision:

Article 28

If the claim found infringed in an effective patent infringement judgment is declaredwholly invalid by the patent administration department under the State Council, and such invalidation occurs after the judgment but before the application for enforcement, the People’s Court shall rule not to accept the application for enforcement or retrial; if it occurs during enforcement proceedings, the People’s Court shall rule to suspend enforcement. If the aforementioned invalidation decision is determined to be legally effective, the People’s Court shall rule to terminate the enforcement proceedings that have already commenced in accordance with the law.

Commentary:

Article 28 aims to clarify how courts should handle the progress of litigation proceedings when invalidation declarations occur at different stages. In practice, invalidation decisions usually precede infringement judgments. If the patent in question is deemed invalid, the usual practice of the court of first instance is to dismiss the lawsuit. In cases where the court of first instance finds no patent infringement and dismisses the plaintiff’s claim, and the patent in question is completely invalidated in the second instance after the plaintiff’s appeal, the Supreme People’s Court has adopted the approach of revoking the first instance’s non-infringement judgment and dismissing the lawsuit. For example, in the second instance civil case (2022) Zui Gao Fa Zhi Min Zhong No. 618 of Lu Yong v. 1905 (Beijing) Network Technology Co., Ltd., the Supreme People’s Court adopted this approach. Article 28 further stipulates how to handle relevant procedures when the patent in question is declared invalid before or after the enforcement proceedings.

It is worth noting that in May 2025, the Supreme People’s Court published case (2024) Zui Gao Fa Zhi Min Zai No. 1 on its official WeChat account, “Supreme People’s Court Intellectual Property Court”[1]. In that case, some defendants had voluntarily performed the judgment before the invalidation decision was made. Chen Company, which had not performed, applied to the Supreme People’s Court for retrial on the grounds that the patent right involved in the case was declared invalid by the invalidation request review decision made by the CNIPA. After review, the Supreme People’s Court held that: “Article 47.2 of the Patent Law, based on the maintenance of the stability of the social and economic order, makes exceptions for patent infringement judgments, mediation agreements, settlement decisions, licensing agreements, and assignment contracts that have already been performed or executed, exempting them from retroactive revocation by patent invalidation request review decisions. However, for patent infringement judgments involving multiple defendants, if the distinction between the applicability of this clause is based solely on the different execution times of the compensation obligations of different defendants, and if those who actively perform bear the adverse consequences of no execution reversal, it would objectively encourage passive performance, delayed performance, or even non-performance, which is detrimental to the protection of patent rights and undermines the construction of a litigation integrity system. In such cases, based on the principle of fairness, the provisions of Article 47.3 of the Patent Law should be actively applied to initiate execution reversal procedures and equally protect the legitimate rights and interests of all parties.”

This case clarifies that when multiple defendants have different times of performing their compensation obligations, the invalidation decision still has retroactive effect even against defendants who have already voluntarily fulfilled their obligations. Furthermore, the legal basis for this approach lies in Article 47.3 of the Patent Law, which states that “if the non-refund of patent infringement damages, patent royalties, or patent transfer fees in accordance with the preceding paragraph clearly violates the principle of fairness, all or part of the fees shall be refunded.”

In summary, Article 28 of the Draft Interpretation III on Patent Infringement Disputes further clarifies that once an invalidation decision is made, the court tends not to pursue enforcement proceedings. This arrangement also aligns with the principle of fairness emphasized in Article 47.3 of the Patent Law.

29. Calculation of penalties for delayed performance of non-monetary obligations

Original text of the provision:

Article 29

The People’s Court may, based on the specific circumstances of the case and taking into account factors such as the nature and circumstances of the tort, and the potential impact of violating non-monetary obligations such as cessation of infringement, order a penalty for delayed performance of non-monetary obligations. The calculation standard for such penalty may be based on a period such as days or months, or on the number of products, or may be calculated as a fixed amount in a lump sum.

Commentary:

Previously, the Civil Procedure Law and its interpretations already stipulated provisions regarding delayed payment penalties for non-monetary obligations. Article 264 of the Civil Procedure Law of the People’s Republic of China stipulates that: “If the judgment debtor fails to perform other obligations within the period specified in the judgment, ruling, or other legal document, he/she shall pay the delayed payment penalties.” Article 505 of the Supreme People’s Court’s Interpretation on the Application of the Civil Procedure Law states that: “If the judgment debtor fails to perform non-monetary obligations within the period specified in the judgment, ruling, or other legal document, he/she shall pay the delayed payment penalties regardless of whether the applicant for enforcement has suffered losses. If losses have been caused, the applicant for enforcement shall be compensated double the amount of the losses already suffered; if no losses have been caused, the delayed payment penalties may be determined by the people’s court based on the specific circumstances of the case.”

According to these clauses, in cases where there is no loss, the penalty for delayed performance shall be determined by the People’s Court, but no specific calculation method is given. The Draft Interpretation III on Patent Infringement Disputes proposes three methods for calculating the penalty for delayed performance: (1) calculated by period such as day or month, (2) calculated by the number of products, and (3) calculated as a fixed amount in a lump sum.This refines the calculation method for the penalty for delayed performance and provides guidance for the rights holder to provide evidence regarding the penalty for delayed performance.

30. The amount of compensation can be reasonably estimated

Original text of the provision:

Article 30

If the rights holder claims that the amount of compensation should be determined based on the actual losses suffered by the rights holder due to the infringement, the profits obtained by the infringer due to the infringement, and a reasonable multiple of the patent licensing fee, and submits corresponding evidence that can be reasonably estimated, the People’s Court shall support it, unless the defendant submits contrary evidence sufficient to refute it.

Commentary:

Article 71 of the Patent Law of the People’s Republic of China stipulates that: “the amount of compensation for infringement of patent rights shall be determined according to the actual losses suffered by the rights holder due to the infringement or the profits obtained by the infringer due to the infringement; if the losses of the rights holder or the profits obtained by the infringer are difficult to determine, the amount shall be reasonably determined by referring to a multiple of the patent licensing fee.”

In actual patent infringement litigation, the difficulty of providing evidence remains one of the main challenges hindering patent holders from protecting their rights. This stems from a severe information asymmetry between the two parties. Key data directly reflecting the infringer’s profits or the patent holder’s losses, such as sales volume, sales region, sales cycle, product profit margin, and the proportion of infringing products in overall revenue, are all controlled by the infringer. For the patent holder, even through investigation and evidence collection, and by requesting the court to obtain evidence, it is difficult to obtain a complete, coherent, and effective chain of evidence, making it impossible to accurately prove the specific amount of their actual losses or the infringer’s illegal profits. Therefore, most patent infringement cases ultimately have no choice but to resort to statutory damages as a last resort.

The provisions on “reasonable estimation” in the Draft Interpretation III on Patent Infringement Disputes are specifically designed to address this issue. Compared to the strict requirements for evidence presented by the patent holder in the Patent Law, the Draft Interpretation III on Patent Infringement Disputes explicitly establishes “reasonable estimation” as the statutory standard for determining the amount of compensation, substantially lowering the evidentiary threshold for the patent holder.