Biotech中国Court CasesCourtsPatent LawPharma
2022年6月16日

What Kind of Damage Awards Can You Get in China?

Is it worth filing for a patent in China? What kind of damage awards can you get?

Pharma companies care more about injunction than damage awards, since it’s quite unlikely that any damage award can compensate for the large amounts of money that may be lost for patent infringement. Chinese courts often issue injunctions in pharma patent litigations (both by the court and administrative enforcement bureaus), though damage awards are possible too.

Although not all court cases are publicly available, there have been some recent published cases with pretty high damage awards, ranging from $750K USD to $25M USD. Keep in mind these are cases litigated under the old patent law, where punitive damages did not exist. Going forward, as punitive damages of up to five times are now part of the new patent law, future damage awards are likely to be even higher.

Uncooperative Defendants? Patentees Can Provide Evidence of Profits

In 2021, the Supreme People’s Court (SPC) awarded a $20 Million RMB ($3 Million USD) damage amount to a Swiss medical device company Synthes GmbH for patent infringement by a Chinese medical device company. The patent related to a medical device for treating femoral fractures which consisted of “a main nail” and “a bone fixation element.”

This particular case is interesting because the Court calculated the damage amount by relying on the patentee’s reasonable assessment of the profits, using evidence such as the infringer’s prospectus reporting the company’s annual operating profits. The court determined that the defendant did not adequately disclose its true profits (e.g., they claimed most of the receipts were “lost” or “missing”). Accordingly, the final assessed profits were based on information provided by the patentee, resulting in this very large $3 Million USD damage award.

Largest Damage Award 2021

The largest damage award of 2021 that we found based on publicly available records was $167 Million RMB ($25M USD), for infringement of a patent originally filed by Toshiba (sold to Oaks Engineering) for an air conditioning compressor. In October 2021, the Intermediate Court ruled that the defendant’s prior art defense was not valid, and proceeded to award a $167M RMB damage award to the plaintiff (Oaks) for patent infringement. The defendant may appeal, so this case is still not over yet.

Pharmaceutical Cases

A recent life science case from 2021 involving a patent covering a fermentation process for synthesizing dibasic acids had a $5 Million RMB award. In general, most successful pharmaceutical cases result in permanent injunctions.

Willful Damages

Willful damages were just added to the patent law in June 2021, and thus the number of judgments will inevitably be lower than in a typical full year. We have not yet found any published cases, though official Chinese Court communications indicate that in 2021 courts across China handled 642,968 IP cases, and awarded punitive damages in 895 cases (0.13% of cases).

About the Authors

Jennifer Che, J.D. is Vice President and Principal at Eagle IP, a Boutique Patent Firm with offices in Hong Kong, Shenzhen, and Macau.

Yolanda Wang is a Principal, Chinese Patent Attorney, and Chinese Patent Litigator at Eagle IP, a Boutique Patent Firm with offices in Hong Kong, Shenzhen, and Macau.

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.

其他文章

China Hands Down First Batch of Patent Linkage “Paragraph IV” Litigation Results

2022年6月30日
China has been implementing a plethora of new laws and measures that are particularly favorable to drug companies, such as patent term extension and patent linkage. Details of the new implementation measures for patent linkage (technically “early dispute resolution mechanisms for drug patents”) came into effect on July 4, 2021. At around the same time, […]
china-joins-two-wipo-treaties

China Joins Two WIPO Treaties, the Hague System and the Marrakesh Treaty

2022年2月11日
It has been two challenging years, yet there are many reasons to still have hope. We wish you a blessed Lunar New Year as we welcome the year of the Tiger. We wanted to highlight a few new developments in China. China has joined the Hague System for the International Registration of Industrial Designs, submitting […]

China’s Newest Examination Guidelines: Post-Filing Supplemental Data for Compounds (Part I)

2021年4月28日
Post-filing data in China has been a constant issue for many patent practitioners around the world. Examiners seem to require it often, and yet the rules regarding when it is acceptable have seemed much stricter than other jurisdictions worldwide. In fact, we tried to summarize the latest state of the law in an earlier blog […]

Stay Ahead: Getting a Chinese Patent in Three Months?

2024年4月23日
The China National Intellectual Property Administration (CNIPA) has announced a significant development in the realm of patent prosecution: the initiation of the "PPH Improvement Initiative" in collaboration with key patent offices from the United States, Europe, Japan, and South Korea. This initiative aims to elevate the user experience of the Patent Prosecution Highway (PPH) by […]

我们的过去活动

Top crossarrow-right