IP Update: China’s Supreme People’s Court Issues First Public Decision Defining China’s Inventorship Standard

In theory China's inventorship standard is similar to others around the world. An inventor is anyone who "makes creative contributions to the substantive features" of an invention. But what does this mean, and how does one apply this standard? Up to this point, this issue hasn't really been litigated much in China (at least according to publicly available records).

We finally have an important case (from the top!) that clarifies this issue. We analyse a binding judgment by the Intellectual Property Court of the Supreme People’s Court (SPC) of China¹. It clarifies China’s applicable inventorship standards and the potential legal consequences of omitting qualified inventors. For U.S. companies conducting R&D cooperation and filing patents in China, this case sets important factors to consider.

1. Case Background

Key Parties

• Dr. Guo: A leading critical care medicine specialist, Vice President of a university-affiliated hospital in China, who provided core clinical insights and inventive concepts during COVID-19.
• Suzhou X Pharmaceutical Co., Ltd. (hereinafter “X Company”): The patent owner that applied for and was granted a patent for Use of Thioimidazolidinone Medicine (Proxalutamide) in Treating COVID-19². The granted patent only covered the method of treating COVID-19 variants (no wild-type).

Collaboration Relationship

X Company is the owner of Proxalutamide, an androgen receptor (AR) inhibitor. In early 2020, Dr. Guo first conceived the idea of using AR inhibitors to block COVID-19 infection and reduce severe inflammation. He and the team shared this idea with X Company, provided technical protocols, and guided the design of global clinical trials, all without a written collaboration agreement in place. X Company subsequently applied for a patent application directed towards the use of proxalutamide in treating COVID-19 (including variants). They did not list Dr. Guo as an inventor.

Later, during the patent examination process, X Company faced a novelty rejection. Initially, the company argued that the D1 should be excluded from prior art³. However, just two weeks later, it voluntarily deleted Claims 1–4 (which covered wild-type COVID-19) without providing a valid reason.

2. SPC’s Inventorship Determination Standards

Beyond the patent prosecution arguments, the SPC’s ruling clarified the standards for inventorship in China, which differ significantly from the U.S.’s claim-centric approach.

First, the SPC emphasized that “substantive features of an invention” for the purpose of inventor identification⁴ are not equivalent to those used in determining inventiveness ⁵. Inventor identification focuses on whether a natural person made substantive technical contributions to the invention process (e.g., method of participation, extent of involvement, and creative input), while inventiveness review focuses on distinguishing the invention from prior art. These two standards serve distinct legal purposes and cannot be conflated— inventor status is independent of whether the invention itself is inventive, for both applications and granted patents.

Second, the SPC stressed that the invention process is iterative, and the discovery of technical problems and proposal of inventive concepts—the starting point of any invention—constitute critical creative contributions. In this case, Dr. Guo and the team first proposed the inventive concept (using AR inhibitors to treat wild-type COVID-19) in early February 2020 and shared research materials with X Company on February 8, 2020. This concept laid the foundation for all subsequent R&D activities.

Third, as an invention involving “a new medical use of a known compound,” the patent’s innovation point lies in the new therapeutic application of proxalutamide (not the compound itself). X Company failed to demonstrate that it independently discovered proxalutamide’s potential for treating COVID-19 prior to collaborating with Dr. Guo, whereas Dr. Guo explicitly proposed this second medical use concept in the materials he provided to X Company.

Notwithstanding these arguments, the CNIPA rejected the claims related to wild-type COVID-19 (citing lack of novelty due to D1, X company’s own public disclosure). X Company deleted the wild-type COVID-19 claims and retaining only those related to variant-specific use. The first trial court held that, in order to emphasize its exclusive ownership interests in the subject patent, X Company intentionally and proactively modified the claims during the litigation stage to “technically evade” the creative contributions of Dr. Guo to the patent in discussion, and that such conduct violated the principle of good faith. The SPC affirmed this holding on appeal.

Fourth, the patent’s substantive features include both proxalutamide’s use for general COVID-19 treatment (the foundational element) and its use for variants (a continuation of the original concept),contrary to X Company’s assertion that only the variant-specific use was inventive. Dr. Guo and the team also participated in other substantive R&D activities, including clinical trial design, data sharing, and technical discussions.

In summary, the SPC confirmed Dr. Guo’s status as an inventor because his inventive concept and substantive contributions formed the starting point and core of the patent—regardless of X Company’s subsequent claim modifications.

3. Final Judgment of SPC

The SPC upheld the lower court’s decision and ordered the following:

1. Inventorship Confirmation: Dr. Guo is legally recognized as an inventor of the patent.
2. Recordal Change: The patentee must amend the inventor list on the patent with the China National Intellectual Property Administration (CNIPA) within 30 days.
3. Public Notice: The patentee must publish a 30-day correction statement on its official website and social media platforms to rectify the inventorship record.
4. Cost Liability: The patentee shall bear all litigation costs.

It is uncertain whether there are any other civil litigation cases between the two parties seeking economic compensation, though this particular case did not involve any such claims

EIP thoughts:

This SPC ruling offers important insights regarding how inventorship is determined in China. Having said that, inventorship plays a different role in China than in the US. A large percentage of inventions in China are Employee Service Inventions, where ownership of inventions made during the course of employment or using an employer’s resources flow directly to the employer. In a majority of these cases, adding or removing an inventor likely will not affect ownership.

Still, it’s important to understand that China’s standards for inventorship are quite different from US standards, and there could be some serious consequences if applicants amend inventorship in Chinese applications in the same way as in US applications.

We’ve summarized some key takeaway lesson below based on this case:

1. Different Standards for Inventorship: Unlike the US, which determines inventorship based on who contributed to each granted claim (on a claim-by-claim basis), Chinese courts prioritize creative contributions to the invention as a whole, i.e., based on the full technical concept behind the invention, not just the final granted claims.
2. Amending Inventorship After Filing: Be very, very mindful of removing inventors after filing, especially if they have made contributions to the invention described in the specification as filed. As demonstrated in this case, deleting patent claims to “cancel” the contributions made by an inventor is a “violation of the good faith principle in China.”
3. Potential Consequences: Purposely omitting “rightful” inventors in China carries potential risks, including court-ordered inventorship corrections, mandatory public notices (which can harm a company’s reputation in China), litigation costs, and even potential challenges to patent validity⁶.

Beyond the direct ruling, we also highlight potential subsequent issues of which U.S. clients should be aware:

1. Inventor Remuneration Claims: Confirmed inventors may pursue statutory rewards or reasonable compensation under Chinese law.⁷ If no previous contract was in place, this remuneration amount could theoretically be quite large, up to >5% of the profits from the inventor’s contributed portion of the invention.⁸
2. Patent Administrative Delays: Because amendments to correct inventorship in China are relatively rare, the CNIPA may conduct targeted reviews of patents/applications that have corrected inventorship, which could cloud licensing, assignment, or commercialization efforts.
3. Cross-Border Agreements: Unclear R&D agreements may lead to disputes over inventorship and IP ownership, particularly given the divergent standards between the two jurisdictions.

Take Away

Based on these insights, below are a few recommendations:

Be mindful of the Chinese standard of inventorship when determining the list of inventors, focusing on contributors to the entire R&D process (not just final claims). Remember that even if a contribution is not novel or inventive, it may still be considered worthy of inventorship.

Document all evidence relating to creative contributions in writing (especially from R&D partners), creating a clear record to resolve potential inventorship disputes.

Be very, very mindful of removing inventors after filing, especially if they have made contributions to the invention as described in the specification as filed. Because most inventions are service inventions and modifying inventorship does not impact ownership, usually the act of modifying inventorship may present more risk to a patent than if the inventor list was left alone.

Explicitly define inventorship and IP ownership standards in cross-border R&D contracts, understanding there are significant differences between Chinese and U.S. patent practices to avoid ambiguity down the line.

Consider engaging Chinese IP counsel earlier to advise on Chinese patent strategy, especially if cross border activity is going on that involves multiple jurisdictions and different standards of inventorship and ownership.

If you would like to have more information on this matter or would like to have our advice, please feel free to contact us at [email protected].

This article is for general informational purposes only and should not be considered legal advice or a legal opinion on a specific set of facts.

1. （2023）最高法知民终2911号 Case No.: (2023) Highest IP Civil Appeal No. 2911
   https://ipc.court.gov.cn/zh-cn/news/view-3387.html?f_link_type=f_linkinlinenote&flow_extra=eyJpbmxpbmVfZGlzcGxheV9wb3NpdGlvbiI6MCwiZG9jX3Bvc2l0aW9uIjowLCJkb2NfaWQiOiI4ZWVjZDE4ZGFmOTZkODk5LTkzOWE2MDQyMjU0NTM0YzUifQ%3D%3D ↩︎
2. Patent No. ZL202110657053.0 ↩︎
3. D1: 《普克鲁胺治疗COVID-19获突破：显著降低住院率和重症率，生物探索》. D1 disclosed the use of proxalutamide for treating wild-type COVID-19. On 16 Sep 2022, company X argued that D1 was made public for the first time for the purpose of the public interests when an extraordinary situation occurred in the country, and the application was filed within 6 months from the publication date of D1. Therefore under Art. 24 a grace period should be applicable. In short, D1 should be excluded from prior art for all claims in the application, meaning none of the technical schemes should lose novelty due to D1. We are of the view that this argument had a good chance to be accepted. On 24 Sep 2022, a Request for Suspension of Procedure was submitted to CNIPA due to a dispute over inventorship rights. On 10 Oct 2022, X company, knowing about the request, filed a response again deleting claims 1-4. ↩︎
4. R13 of the Implementing Rules of the Patent Law. An inventor or creator referred to in the Patent Law means any person who makes creative contributions to the substantive features of an invention-creation. ↩︎
5. Art. 22.3 of the Patent Law. Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents an obvious progress, and that the utility model has substantive features and represents a progress. ↩︎
6. It is important to clarify that the mere omission of eligible inventors, standing alone, does not constitute a ground for invalidation according to R69 of the Implementing Rules of the Patent Law.  Instead, the act of omitting inventors accompanied by a violation of the principle of good faith—such as intentionally modifying claims to evade recognition of the omitted inventors’ creative contributions, as seen in this case—may lead to challenges to patent validity according to R11. ↩︎
7. R93 of the Implementing Rules of the Patent Law. Where patentee has neither reached an agreement with the inventor or designer, nor stipulated in its lawfully formulated rules and regulations the method and amount of the reward referred to in Art. 15 of the Patent Law, it shall, within three months from the date of the announcement of the grant of the patent right, issue an award to the inventor or designer. The award for an invention shall not be less than 4,000 RMB; the award for a utility model or design shall not be less than 1,500 RMB. ↩︎
8. Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements, Art 45.
   …(1) Where the work-related S&T achievements are transferred or licensed to others for implementation, at least 50% of the net income from the transfer or licensing of such S&T achievements shall be withdrawn for rewards and compensation; (2) Where the work-related S&T achievements are used for trade-in investment, at least 50% of the shares or capital contribution proportions formed from the S&T achievements shall be withdrawn for rewards and compensation; (3) Where the work-related S&T achievements are implemented by the organizations themselves or through cooperation with others, at least 5% of the operating profits from implementing such S&T achievements shall be withdrawn for rewards and compensation each year, for three to five years, consecutively, after their conversion into practical applications and the successful commissioning thereof. ↩︎