Civil or Administrative Action for Patent Infringement in China: Which Should You Choose?

Written by Dr. Jian Xu, IP Expert and collaborator of the China IP SME Helpdesk.

As a foreign company looking to enforce your patent in China, you might be wondering: Is it better to take the case to Chinese courts or file a complaint with the Chinese IP Administrative Authority? Let's break it down for you.

The administrative route has some clear advantages. It's generally cheaper and quicker than going to court. Plus, the evidence gathered during an IP officer raid can be a goldmine for any future civil action you might want to pursue.

But here's the catch - you won't get any damages through the administrative route. Sure, the IP office can order the infringer to stop and slap them with fines, but none of that money goes to you. Another downside? If your tech is too complex for the administrative officials to wrap their heads around, they might not even take the case.

So, what's the best way forward? Here are some tips to help you decide:

Got a complex invention patent infringement case? The court is probably your best bet. For simpler design patent infringements (and sometimes utility model infringements), the administrative option could work well.

If the infringement is as clear as day, and you're more interested in quickly stopping the infringer or keeping legal costs down than getting damages, the administrative route might be your answer.

Finding evidence can be tricky in China, as they don't have discovery or disclosure procedures like some other countries. In this case, you might want to use the administrative option as a clever way to gather evidence, then follow up with a civil action armed with what you've found. Think of it as a stepping stone to a stronger court case.

Here's an interesting tidbit: The China IP Office (CNIPA) can handle administrative actions for patent infringement if it's a case of national importance that spans multiple areas in China. Unlike local IP offices, CNIPA isn't afraid to tackle complex invention patent disputes. In fact, there was a recent pharmaceutical patent infringement case where the CNIPA administrative option worked out really well.

In the end, your choice between civil and administrative action will depend on your specific situation. Consider the complexity of your patent, what you're hoping to achieve, and what evidence you have at hand. Sometimes, a mix of both routes might be your best strategy. Whatever you decide, make sure it aligns with your overall goals for protecting your intellectual property in China.