Chinese Patents getting stronger as of June 2021

The fourth amendment to the Patent Law of China, and more specifically Article 71 of the new law, introduces three aspects. These new aspects shall strengthen patentees’ rights against infringement.

1 – Quintuple damages for intentional infringement

Under the new law, a court can award up to five times the original damages if the circumstances are serious and the infringement is intentional. It remains to be seen how courts will interpret these conditions.

2 – Increasing the cap of the statutory damages up to 5 million RMB (approximately 650kEUR)

Statutory damages are a lump sum of damages awarded to the patentee when the actual amount of damages is difficult to determine. The upper bound of the statutory damages is now increased to 5 million RMB. This is five times the previous cap.

3 – Shifting the burden of proof of damages to the infringer

Generally, it is the claimant who has to provide proof of damages. The new law shifts the burden of proof to the infringer if the patentee has exerted his/her best efforts to establish such proof. This shift also applies when relevant information is mainly in the hands of the infringer. Failure to do so can lead the Court to support the patentee’s claims. As a result, this can urge the infringer to cooperate with the proceedings.

One thing is certain: these new steps to better secure a patentee’s position in the context of disputes show how China is becoming more and more a key country in the defense of IP rights. The new Patent Law enables patentees to better defend their monopoly in one of the largest markets worldwide, China.

These and past amendments should be taken into account when determining a strategy for protecting your innovation. Companies should definitely not be deterred from obtaining patents and enforcing their exclusive rights in China.

Written by Samuel Denis

European Patent Attorney

PhD in Applied Sciences

European Patent Litigator

View expert