Written by Elliot ZHOU and
multiple courts have jurisdiction over a plaintiff's claims, the plaintiff may
forum shop, or choose the court that will treat his or her claims more
favorably. According to the Chinese Patent Law and relevant judicial interpretations,
when a patent infringement arises, the courts that have jurisdiction over such
a case includes:
(1) the Intermediate People’s Court (including the
specialized IP Court) where the infringement takes
(2) the Intermediate People’s Court (including the
specialized IP Court) where the defendant’s domicile
the “patent infringement” is defined as those manufacture, sell, offer for
sale, use or import the patented product(s), and include the place where
infringing activities take place and the place where infringing result
if the patent infringement is found online only (for
example, found on the e-commerce platform only) and if it is hard to prove
where the infringement actually takes place, the safest approach is to choose a
court at the defendant’s domicile to file the patent litigation (namely,
the option (2) above).
for online patent infringement, we have seen some plaintiffs mistakenly choose a
court at the delivery address for patent litigation. Their logic was that the
online shopping allows buyers to select the address for delivery, and therefore
they choose their home address as the purchasing address, shipping address or
the billing address, and they thought that this would naturally make their home
address become a place where infringing result takes place. This logic was
proven to be wrong according to the Supreme People’s Court judgement in 2017 (Zui Gao Fa Min Xia Zhong No. 107), and after
that judgement took effective, the delivery address of any online shopping is
no longer deemed to have an appropriate jurisdiction over patent or trademark litigation.
in comparison to the intermediate people’s courts, the four specialized IP
courts (i.e., the ones based in Beijing, Shanghai, Guangzhou, and possibly the
one based in Hainan as well) would have less local protectionism and
tend to award higher damages in a patent infringement litigation. Thus, if
a non-Chinese entity is ready to initiate a patent litigation in China, a forum
shopping to one of the specialized IP courts based in Beijing, Shanghai or
Guangzhou is highly recommended.
common approach for such a forum shopping is to attend exhibitions based in
Shanghai, Guangzhou or Beijing, and conduct a notarized investigation or
notarized purchasing at the exhibition to secure the evidence. As many large
exhibitions are held in cities like Shanghai, Guangzhou or Beijing, it would be
easier to secure the evidence in the exhibition and establish a court’s
jurisdiction concurrently. According to a report by Shanghai IP court, in
of the IP infringement cases, the plaintiffs use exhibitions held in Shanghai
as a way to establish jurisdiction in Shanghai.
a forum shopping to intermediate people’s courts located at Hangzhou, Suzhou and Shenzhen would also be a good second
option, because these cities are relatively economically developed and have a
good number of experienced judges to hear patent infringement trials for years.
you have any questions about this topic or patent-related litigation or
prosecution, please feel free to contact us at firstname.lastname@example.org.