Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 14: THE INTERPLAY BETWEEN INFRINGEMENT AND INVALIDITY PROCEEDINGS
The dualism of the revocation procedures and the infringement procedures is one of the characterising features of the Chinese patent system. There is not only a division of duties and competences, but there are also different procedural rules which govern the proceedings: Infringement proceedings are handled by the civil courts according to Civil Procedural Law and revocation proceedings are conducted by the Patent Reexamination Board according to Administrative Procedural Law. Although both procedures follow parallel tracks there is an interplay between the proceedings which leads to complex issues concerning the procedural interdependence and the determination of the scope of protection of the patent which is subject to both procedures. The interplay also results in a playground for tactical considerations. In the normal course of an infringement dispute, the plaintiff initiates the infringement proceeding by filing a complaint with the infringement court having jurisdiction. After the court accepts the complaint, it is served to the defendant together with the court notification in which the court sets a deadline – 15 days for a Chinese party or 30 days for a foreign party without a residence or registered branch in China – for presenting the defence. During the defence period, the defendant can file a rebuttal brief with counterarguments or contest the jurisdiction of the court or just remain silent, which does not preclude the defendant from presenting counter-arguments during the oral hearing. The defendant who takes the position that the patent is invalid has to file a request for invalidation at the Patent Reexamination Board and may file
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