Table of Contents

Patent Law in Greater China

Patent Law in Greater China

Elgar Intellectual Property Law and Practice series

Edited by Stefan Luginbuehl and Peter Ganea

This book provides a comprehensive introduction to patent policy, law and practice in Greater China and will be a go-to book for patent practitioners who have client interests in that region.

Chapter 14: THE INTERPLAY BETWEEN INFRINGEMENT AND INVALIDITY PROCEEDINGS

Nils Heide

Subjects: law - academic, asian law, intellectual property law, law -professional, intellectual property law

Extract

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

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information