How to Enforce Your Patents in China

2026-03-19

        Discovering a potential patent infringement can be unsettling. However, there is no need to panic. In China, patent enforcement is a structured process that can be pursued through multiple avenues and various steps. This article outlines the necessary preparatory work and the various enforcement pathways available, providing a clearer understanding of how to enforce your patents in China.

I. Preparatory Work before Enforcement

An old Chinese saying wisely advises, "Fight no battle unprepared." To enforce your rights effectively, thorough preparation is essential before taking any action against potential infringement. This preparation includes:

 (1) Confirming the Validity of Your Patent

Before initiating enforcement, the first step is to verify the status of your own patent. This includes verifying whether the patent has been granted, ensuring it remains within its valid patent term, confirming timely payment of annuities, and evaluating the overall stability of the patent, etc.

The primary purpose of this step is to avoid situations where flaws in the patent itself hinder subsequent enforcement efforts (for instance, having the patent declared invalid during the enforcement, which led to the loss of rights, etc.), which would nullify all the work and costs invested in enforcement.

This is particularly important for utility model patents and design patents in China, as they typically do not undergo substantive examination and are therefore generally considered less stable than invention patents. And when seeking judicial or administrative relief for a utility model or design patent, courts and patent administrative authorities often require the patent holder to submit a Patent Evaluation Report. Therefore, if your enforcement involves a utility model or a design patent, it is advisable to proactively request such a report from the China National Intellectual Property Administration (CNIPA). This report evaluates the patent's novelty, inventiveness, and practical applicability, helping to confirm its stability beforehand.

However, it's important to note that once a Patent Evaluation Report is issued, any third party can request a copy of the Report from the CNIPA. In practice, this report can be a double-edged sword. A positive conclusion strongly supports your enforcement efforts, while a negative one can create obstacles. Therefore, whether to request a Patent Evaluation Report from the CNIPA should be determined carefully based on the actual circumstances of your patent.

(2) Performing a Patent Infringement Analysis

In practice, once an alleged infringing product is identified, we strongly advise rights holders to first conduct a patent infringement analysis. This analysis aims to determine whether the product indeed falls within the scope of protection of your patent.

Some rights holders might simply compare the alleged infringing product with their own commercial product, assuming that similarity between the two products automatically constitutes infringement. However, in practice, determining infringement requires comparing the allegedly infringing technical solution with the claims of the granted patent.

Because claims of a patent can be amended during prosecution for various reasons, or because the patentee's own commercial product may have undergone revisions, the protection scope defined by the granted claims may not perfectly align with the patentee's actual product. Therefore, the assessment of whether an opposing party's product or method constitutes infringement must be based on the scope of the granted claims. If the opposing party's technical solution includes technical features identical or equivalent to all the technical features recited in a claim, it can be found to fall within the patent's protection scope. Conversely, if the opposing party's solution lacks one or more technical features recited in a claim, or has one or more technical features that are neither identical nor equivalent, it cannot be concluded that the solution falls within the scope of the patent.

(3) Collecting and Preserving Evidence

Following the principle of "he who asserts must prove," the rights holder typically bears the main burden of proof in patent infringement cases. Consequently, the sufficiency of the evidence prepared by the rights holder largely determines the success or failure of the enforcement action. The evidence needed falls into categories such as evidence proving the infringing act and evidence supporting the claimed damages.[i]

In practice, infringers often hide, transfer, or destroy relevant evidence upon receiving notice of a rights holder's enforcement action. Therefore, before taking any concrete action against potential infringement, it is highly recommended to collect and preserve relevant evidence promptly to prevent loss of evidence. For example, key information about the infringing product and act can be secured in advance through notarized purchases or notarized web page captures, preparing the ground for subsequent formal actions.

II. Formulating an Enforcement Strategy and Taking Corresponding Actions

After completing the necessary preparatory work described above, the rights holder can formulate a specific enforcement strategy based on the actual circumstances and take corresponding actions.

In China, there are several main avenues for patent enforcement.

(1) Administrative Route

Administrative remedy involves seeking relief from the patent administrative authority, specifically by filing a request for handling a patent infringement dispute with the local patent administrative department where the infringement occurs or where the accused infringer locates.

The administrative authority may investigate the alleged infringer and typically commissions experts to determine whether the accused product falls within the protection scope of the patent. If infringement is established, the authority can issue an order requiring the infringer to cease the infringement immediately and to destroy specialized equipment and molds used for manufacturing the infringing products. If the infringer refuses to comply the order and do not file an administrative lawsuit within a specified time limit, the administrative authorities may apply to the court for compulsory enforcement.

It is important to note that damages cannot be sought through this administrative procedure. The administrative authority can only mediate the amount of infringement damages upon the request of the parties. If mediation fails, the parties must file a civil lawsuit with the court to seek compensation for damages.

Typically, it takes an administrative authority 3 to 6 months to make a decision, though complex cases may take longer. If either party disagrees with the decision, they can file an administrative lawsuit with the court.

In summary, administrative remedy offers a relatively quick way to obtain a cease-and-desist order and facilitates mediation on damages. However, enforcement of the decision may require court assistance, and the decision is not final, as it can be challenged by either party through litigation.

(2) Judicial Route (Litigation)

Judicial remedy means filing a lawsuit with the court, specifically, a patent infringement lawsuit. This is the most common method of enforcement. Compared to the administrative route mentioned above, judicial remedy offers more direct and enforceable outcomes.

Generally, a patentee or interested party must file a lawsuit within the limitation of action, which is three years from the date they knew or should have known about the infringing act and the infringer. If the infringement was known before the patent's grant date, the three-year period starts from the grant date.

Patent infringement litigation typically requires the plaintiff to provide sufficient evidence to prove the validity of the patent, the establishment of the infringing act, and the amount of damages. If the court determines that infringement is established, it will issue a judgment requiring the infringer to cease the infringement, compensate for damages, and fulfill any other reasonable demands of the plaintiff.

According to the Civil Procedure Law, the trial period for ordinary procedures at first-instance is generally 6 months. However, due to the technically complex nature of patent cases, the trial period is often longer than that of ordinary civil cases. In practice, obtaining a first-instance judgment typically takes 6 months to a year. If the case is highly complex (for example, involving intricate technology or suspension due to a parallel patent invalidation proceeding), it may take over a year.

If either party disagrees with the first-instance judgment, they can appeal to a higher court. The Civil Procedure Law stipulates a general trial period of 3-6 months for second-instance proceedings. However, given the complexity of patent infringement cases, obtaining a second-instance judgment may take six months, or even over a year.

In summary, while the judicial remedy involves a longer litigation timeline, it can comprehensively resolve both the cessation of infringement and the issue of damages. For rights holders seeking substantial compensation, this is the preferred route.

(3) Notification Letters or Cease-and-Desist Letters

If a rights holder wishes to directly demand that the alleged infringer cease the infringing activity, they may also send a notification letter informing them of the patent's existence, or a more formal cease-and-desist letter specifying the infringing acts, demanding cessation, and requesting a response within a set timeframe.

Sending such a letter is not a mandatory prerequisite for seeking judicial or administrative relief. However, it can sometimes prompt the alleged infringer to voluntarily cease the infringement or engage in settlement negotiations. Therefore, this approach serves as a means for the rights holder to put the other party on notice and potentially seek an amicable resolution. Additionally, if the other party continues the infringement after receiving the letter, the letter itself can become powerful evidence of willful infringement in a subsequent lawsuit, potentially leading to higher damages. Furthermore, a warning letter containing clear requests can also interrupt the limitation of action, buying the rights holder more time to prepare a formal infringement lawsuit.

It is important to note that the infringer, upon receiving such a letter, might become alert and proceed to hide, transfer, or destroy evidence. Therefore, it is essential to ensure that all crucial evidence has been properly secured before sending any communication, to avoid alerting the other party prematurely.

Additionally, if the alleged infringer ignores the letter, other enforcement measures should be considered.

(4) Complaints on E-commerce Platforms

If infringing products are found being sold on Chinese e-commerce platforms (e.g., www.taobao.com, or www.jd.com), the rights holder may consider filing a complaint with that specific platform.

Unlike for trademarks or copyrights, platforms tend to be more cautious when handling patent infringement disputes. In addition to submitting proof of rights and links to the infringing products, the rights holder must also provide a detailed infringement comparison explanation. If the patent involved is a utility model or design, the platform will typically require a Patent Evaluation Report. If infringement is confirmed, the platform will order the infringing party to remove the relevant product links.

Filing complaints via e-commerce platforms can lead to the swift removal of infringing links and products. However, compensation cannot be obtained through this platform complaint mechanism.

Moreover, this method is generally most effective for patents involving simpler technologies (e.g., design patents). For complaints based on more complex technologies (e.g., invention patents), the platform might require supplementary evidence to establish infringement, such as a court judgment or an administrative adjudication specifically finding the accused product to be infringing.

III. Conclusion

As illustrated above, there are multiple pathways for patent enforcement in China, each with its own advantages and disadvantages. Rights holders may choose one or combine several approaches based on factors such as the type of patent, the specific details of the infringer and the infringing act, their own objectives (e.g., simply stopping the infringement versus seeking financial compensation), as well as considerations of time and cost. Furthermore, regardless of the chosen enforcement route, the importance of thorough preparatory work (such as the collection and preservation of evidence) cannot be overstated. The adequacy of this preparation is a decisive factor in the ultimate success of any patent enforcement effort.