Utility model and design patents are of great importance in China. In 2017, they accounted for around 90% of patents asserted in litigations (30% for utility model patents and 60% for design patents).  

Since a utility model or design application in China is not subject to substantive examination, to prevent abuse of a utility model or design patent right, the patentee will usually need to get an evaluation report rendered by CNIPA, before he can enforce the patent. 

Here we list a few typical scenarios in which an evaluation report is generally necessary for enforcement of a utility model or design patent: 1) in infringement litigations, as requested by the court, 2) to record a utility model or design patent with the General Administration of China Customs so that customs will proactively suspend imports and exports of infringing goods, 3) to file complaints requesting removing infringing products from e-commerce websites. 

According to the Patent Law before this revision, only the patentee and an interested party, such as a recorded exclusive licensee, a licensee with granted right to sue, have the right to request CNIPA to render an evaluation report. 

However, in some cases, the (potential) accused infringer may also want to request an evaluation report. For example, if the patentee does not request the render of the evaluation report, the accused infringer in an infringing litigation may want to make such request, because if the conclusion of patentability of the utility model or design patent is negative, it will cause many difficulties for the patentee. As another example, when a potential accused infringer received a warning letter related to a utility model or design patent, he may want to get the evaluation report from CNIPA which could serve as an important reference for dealing with the warning letter.  

According to the revised Patent Law which came into effect on June 1, 2021, an accused infringer in a civil patent infringement or an administrative enforcement case is entitled to request the evaluation report for the utility model or design patent involved in the case. 

According to the draft amendment to the Implementing Regulations of the Patent Law and Patent Examination Guidelines, a potential accused infringer can also request said evaluation report. In that case, the warning letter received from the right holder should be submitted to CNIPA as evidence of the subject eligibility.