China's Patent Infringement Remedies

• Author: Zhao Meisheng
• Pages: 221-224

ZHAO (DO NOT DELETE) 2013/9/71:28 PM

2013] CHINA’S PATENT INFRINGEMENT REMEDIES 221

CHINA’S PATENT INFRINGEMENT REMEDIES

ZHAO Meisheng

I. INTRODUCTION

The remedies against patent infringement are directly related to

the efficiency of patent systems. Fair and sufficient remedies are

among the key elements which help establish a successful patent

system. The provisions regulating patent lawsform the legal basis for

arriving at the remedies. Therefore the analysis in this article is based

on relevant substantive provisions in Chinese patent law,

supplemented by practical observations when necessary.

In this article, the remedies analyzed are damages, injunctions,

criminal punishments and costs. Generally speaking, these remedies

are obtainable through litigation. However ADR (Alternate Dispute

Resolution) and administrative bodiesmay also be involved in the

process for obtaining these remedies.

II. ANALYSIS AND EXAMINATION OF SPECIFIC REMEDIES

A. Damages

China recently amended its Patent Law effective 1

October,2009.1Under previous amendments,there were no national

provisions in the Patent Lawconcerning the calculation of damages.

Under the new amendment, the quantum of damages caused by

patent infringement isbased on the losses suffered by the patent

holder or the profits which the infringer has earned through

infringement.If it is difficult to determine the losses suffered or the

profits earned, the amount may be assessed by reference to an

appropriate multiple of the value of the royalties.2

The financial loss method is generally used in China to calculate

damages when the patented product or the product manufactured by

the patented process has been put on the market by the patentee or its

licensee on a large scale and its market position has been adversely

affected by the infringement of its patent.Damages are generally

assessed with reference to the infringer’s total profits when the

patented product or the product manufactured by the patented

process has not entered the market or has only entered on a small

scale and, as a consequence, the product has not achieved a

1 See ZhuanliFa（专利法）[Patent Law](promulgated by the Standing Comm. Nat’l People’s Cong.,

Mar. 12, 1984, effective Apr. 1, 1985)（Amended on August 25, 2000 )(China).

2 See supra note 1, art. 65.