Wang and Du on SEPs and Injunctions in China

Wang Wenjing and Du Ying have published an article titled Theoretical Basis for the Shift of Judicial Practice on Injunctive Relief for SEPs in China, China Patents & Trademarks No. 2, 2025, English translation at pp. 26-36.  The article discusses the evolution of Chinese courts’ practice with regard to injunctions for SEPs.  According to the authors, in 2008 the Supreme People’s Court (SPC) issued a letter (Reply Letter No.4) that was interpreted to mean that patent holders were deemed to have implicitly agreed to license their SEPs.  The SPC signaled a possible change of course in 2009, however, when it issued a draft of its Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Patent Infringement, article 20 of which limited the effect of Reply Letter No. 4 to nondisclosed patents.  That provision didn’t make it into the final draft (an English translation of which is available here), but the authors state that draft article 20 nevertheless suggested that the Court had “softened its attitude toward injunctive relief for SEPs” (p.27).  The law continued to evolve throughout the 2010s, with new cases and with guidance published by the SPC, the Beijing High People’s Court, and the Guangdong High People’s Court, all of which seemed to point to a fault-based system not altogether unlike the framework set out in the CJEU’s decision in Huawei v. ZTE.  (For discussion, see Yabing Cui, Across the Fault Lines: Chinese Judicial Approaches to Injunctions and SEP’s, China IPR Blog, June 5, 2018; see also article 8 of the State Administration for Market Regulation’s Anti-Monopoly Guidelines in the Field of SEPs, (Nov. 8, 2024), translated and quoted in Aaron Wininger, China’s State Administration for Market Regulation Releases Anti-monopoly Guidelines in the Field of Standard Essential Patents, China IP Law Update, Nov. 11, 2024.)  The authors of the China Patents & Trademarks article suggest, however, that in the absence of legislation “there is no clear consensus on the ways to regulate injunctive relief for SEPs in judicial practice, not are there unified and mature standards for the application thereof” (p.29).  They then provide a theoretical analysis that touches on the law-and-economics of property versus liability rules, a balance-of-interests approach, and the concept of proportionality.  They state that some scholars have advocated incorporating a proportionality principle into China’s patent law in the future, and contend that such a principle has been implicitly applied in Chinese law already (pp. 33-34).

It will be interesting to see if the Chinese authorities follow the authors' advice and explicitly adopt some sort of proportionality criterion into the law as it relates to injunctive relief--and if so, what the contours of this criterion would be.  And, of course, the evolution of the proportionality concept in E.U. law also remains something of a work in progress, as I briefly discuss in this paper.