18 December 2015Jurisdiction reportsJiancheng Jiang

China to adopt provisions on contributory infringement

In some countries such as the US, Germany and the UK, legal liability of contributory infringement of a patent (as such or in similar terms) is explicitly provided for in the law. However, there are not any such provisions in the current Chinese patent law. Moreover, the concept of contributory infringement is missing even in the general framework of civil law.

A question arises in the practice of patent enforcement, which is how the Chinese courts handle cases involving contributory infringement. Specifically, what is the law that judges apply to such cases?

The fact is that Chinese courts have been trying to apply the legal provisions on “joint infringement”, a concept in the existing legal framework that is closest to contributory infringement. This concept is found only in general civil law but not specifically in the patent law, although it is also found in the “judicial interpretations” of the patent law, a directive enacted by the Supreme People’s Court and applied by courts at various levels handling patent cases.

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