United States: A Quantitative Analysis Of Chinese Patent Litigation

Last Updated: October 11 2018
Article by RPX Corporation

The dramatic rise of patent litigation in China in recent years has created a need for insight into how the system performs—what kinds of cases are brought, how those cases turn out, and the potential risks posed by remedies in those cases.

In this post, we discuss the salient trends that have emerged from Chinese litigation data, focusing on the composition of caseloads for Chinese courts as well as on win rates and remedies at a system-wide level. Our dataset covers approximately 21,000 cases spanning more than a decade, from 2006 to the present. While the forthcoming integration of the data into RPX Insight will help practitioners answer more detailed questions for themselves, this post provides a first look at the available data.

RPX's previous blog post provides a concise summary of the many aspects of the Chinese patent system and patent litigation and how they differ from the US patent regime. There, readers can explore definitions and explanations of terms specific to the Chinese system as they are used below.

Our next blog post in this series will examine more closely how cases involving non-Chinese companies compare with those having only domestic parties.

Cases, Courts, and Market Sectors

The amount of Chinese patent litigation has nearly tripled in the last decade, going from slightly over 1,000 cases closed per year in the mid-2000s to nearly 3,000 cases closed in 2016.

The decline in 2017 and 2018, as indicated in Figure 1 below, may largely be due to inherent limitations in the reporting of Chinese litigation data: information on pending, dismissed, and settled cases is not available, and cases are not always reported immediately upon closure. As a result, totals for 2017 and 2018 are likely to rise as additional information becomes available.

Fig. 1: Cases Closed by Year

Note: Reporting limitations affect recent years; totals are likely to rise as additional data becomes available.

Unlike in the US, the venue distribution of patent litigation in China is highly correlated with population; there is no Chinese equivalent to the Eastern District of Texas. Figure 2 below shows that Chinese litigation is consistently concentrated in the populous coastal cities, especially in the provinces of Beijing, Shandong, Jiangsu, Shanghai, Zhejiang, and Guangdong.

This has continued to be true even after China began creating both specialized Intellectual Property Courts in Beijing, Shanghai, and Guangzhou and Intellectual Property Tribunals in other regions in late 2014 as part of an effort to reduce forum shopping. These courts have exclusive jurisdiction to hear first-instance patent cases.

Fig. 2: Cases Closed by Province

Chinese patent litigation is primarily focused on the industrial and manufacturing sectors, together comprising more than three quarters of the cases. Market sectors such as mobile communications, networking, and media content and distribution are rare among Chinese cases, despite constituting a much larger portion of American patent litigation.

Fig. 3: Cases Closed by Market Sector (Cases Closed 2006-2018)

Akin to district court cases in the US, first instance proceedings in China are brought in People's Courts (or, in provinces where one exists, an exclusive IP Court or IP Tribunal). The second instance represents an appeal from the decision reached by the court in the first instance. A second-instance proceeding is generally brought before a High People's Court or Supreme People's Court.

Generally, upwards of 20% of reported cases have terminated with a second instance proceeding, with an increase to nearly 30% in more recent years.

Fig. 4: Posture of Closed Cases

Outcomes and Remedies

Plaintiffs win the majority of cases that reach a merit-based outcome, while defendants get a "clean win" (a win on all asserted patents and claims) only about 20% of the time. Roughly 20-30% of cases involve a mixed outcome (often where multiple patents or claims are at issue).

RPX's next blog post will examine more closely whether cases involving foreign parties can expect similar outcomes.

Fig. 5: Outcomes on the Merits

Although at least some damages have been awarded in more than half of the cases closed since 2006, those damages have often been remarkably low, with the overwhelming majority amounting to $100K or less. Notably few cases have resulted in damages greater than $1M, and of those, only one case saw an award greater than $10M. Note that settlement figures are not publicly available.

As a result, the primary expense for foreign companies litigating in China is likely to be costs (which are not included in the damages amounts) and working around injunctions (see Figure 6 below).

Fig. 6: Damages Awarded by Amount (Cases Closed Since 2006)

While damages in Chinese patent litigation are low compared to the US, the rate of injunction issuance is quite high. When the plaintiff prevails (either outright or in a mixed-outcome judgment), an injunction is issued more than 90% of the time.

Although the factors that must be established for an injunction are similar to those in the US (with the plaintiff required to show a likelihood of success on the merits, that it will suffer irreparable harm absent an injunction, and that the injunction is not against the public interest), they appear to be applied much more liberally in China. This contrasts starkly with the US; since the issuance of the Supreme Court's decision in eBay v. MercExchange in 2006, US courts have generally been skeptical of requests for injunction.

Notably, injunctions by Chinese courts not only prevent the domestic practice of the patent but can also block export of patented articles. Thus, while damages are typically low, the risk presented by injunctions is substantial. Although the amount and frequency of settlements are unknown, the increased leverage provided by the threat of injunctive relief could theoretically push settlement levels above typical damages amounts.

Beyond damages and injunctions, Chinese courts also have the power to force the defendant to publish an apology, though this occurs in less than 5% of cases.

Fig. 7: Injunctions on Plaintiff Win (Cases Closed Since 2006)

Understanding the dynamics of Chinese patent litigation can help companies reduce costs and make smarter decisions when faced with the prospect of a case in China. With the number of cases per year steadily rising, knowing the risk of an injunction and the typical range of damages awarded enables companies to set a strategy that can give them the competitive advantage. As the Chinese patent litigation landscape continues to evolve, readers can always turn to RPX for the most comprehensive analysis of new developments and their business ramifications.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions