Chinese Patent Validity Challenges Succeed About 60% of the Time
December 30, 2020
RPX’s China dataset covers approximately 25,000 invalidity cases spanning a decade, from 2010 to the present. These data reveal that the number of Chinese patent invalidity proceedings has increased about threefold in the last decade, going from less than 1,400 cases closed per year in 2010 to over 3,800 cases closed in 2018.
Moreover, as shown below, patents are invalidated in about 60% of such proceedings. After an invalidity proceeding reaches a decision, no one may raise the same underlying argument based on the same evidence against the same patent in a subsequent case.
Unlike in the US, invalidity claims—barred in Chinese courts—must be brought in separate administrative proceedings before the Reexamination and Invalidation Department of the Patent Office at the China National Intellectual Property Administration (CNIPA). (These proceedings were previously handled by the CNIPA’s Patent Reexamination Board (PRB), which merged into the Patent Office.) This approach is more restrictive than the one taken in other countries that also require infringement and invalidity claims to be filed separately: for instance, defendants in Germany can file both civil invalidity suits (nullity actions) in court as well as administrative validity challenges, while in China only the latter are available.
An invalidity proceeding generally takes about six months to reach a judgment. Invalidity appeals go exclusively to the Beijing IP Court, with potential further appeal to the IP Tribunal of the Supreme People’s Court.
