The Supreme People’s Court of the People’s Republic of China (hereinafter referred to as “SPC”) has released for public comment a draft of its third judicial interpretation (“Interpretation (III)”) addressing key procedural and substantive issues in patent infringement litigation. The comment period remains open until February 2, 2026.

The draft of Interpretation (III) comprises 31 articles spanning critical areas of patent enforcement, including jurisdictional rules, standing to sue, claim construction, infringement analysis, defenses, damages, and related procedural mechanisms. Several notable provisions warrant particular attention from practitioners advising clients on Chinese patent litigation strategy:

Section I Comments for Modifications of Two Articles

1. Disclaimer Rule (Article 12)

Article 12 If a person skilled in the art, by reading the claims, specification, etc., can determine that the claims intentionally exclude a specific technical solution, and the patentee claims that such a specific technical solution falls within the scope of patent protection, the People's Court shall not support such a claim.

This article is regarding claim construction, which means that, if the patentee explicitly disclaims specific technical solution, and then such patentee cannot enforce such disclaimed technical solution in the enforcement action.  The counter part of legal reasoning can be found in SciMed Life Systems, Inc. v. Advanced Cardiovascular Systems, Inc., 242 F.3d 1337 (Fed. Cir. 2001), which can also be deemed as “disclaimer rule”. We are also pleased to observe that the Supreme People's Court's approach to claim construction aligns with internationally accepted legal principles.

In addition to the explicit disclaimer made within the claims and the specification, in practice, patent applicants often narrow the scope of protection of the claims during the application process, such as when responding to office actions in order to obtain grant. Likewise, during invalidation proceedings, patentees may also explicitly disclaim certain technical solutions to defend against invalidity challenges. Accordingly, we recommend expanding the scope of review to include "documents from the patent prosecution history, as well as statements made by the patentee during invalidation proceedings."

Thus, the new version of Article 12 might be the following, 

Updated Article 12 If a person skilled in the art, by reading the claims, specification, documents from the patent prosecution history, as well as statements made by the patentee during invalidation proceedings, etc., can determine that the claims intentionally exclude a specific technical solution, and the patentee claims that such a specific technical solution falls within the scope of patent protection, the People's Court shall not support such a claim.

2. “Malicious Litigation” (Article 25)

The draft of Interpretation (III) provides interpretive guidance on actions that may constitute abusive or “malicious” patent enforcement, which can lead to liability for damages suffered by the accused party. Significantly, it explicitly identifies the initiation of infringement lawsuits timed to coincide with a company’s registration for an Initial Public Offering (IPO) as a potential scenario constituting malicious litigation. This reflects regulatory concern over the use of patent claims to disrupt capital market activities.

However, it would be highly disadvantageous to patentees and inconsistent with established legal practice to categorically define "the patent... having expired" as a scenario constituting malicious litigation. In practice, a patentee retains the right to initiate infringement proceedings for acts of infringement that occurred during the term of the patent, even after the patent's expiration (i.e., claims for past infringement). Such enforcement actions do not, in themselves, demonstrate bad faith on the part of the patentee. Malicious intent would only potentially arise from continued enforcement actions asserting infringement for acts occurring after the patent's term has expired.

Therefore, it is recommended that the referenced provision be amended to read: "(2) knowingly asserting patent rights that have been definitively invalidated, have been confirmed by an effective judicial ruling as belonging to another person, or have expired, specifically with respect to alleged acts of infringement occurring after the expiration date."

Section II Comments for Hot-discussed Articles

1. Trial Proceedings Unimpeded by Jurisdictional Appeal (Article 2)

While Article 2 allowing first-instance courts to conduct evidence exchange and pre-trial conferences during the appellate review of jurisdictional objections may partially expedite proceedings, the overall efficiency gains are likely limited. In practice, the pace of patent infringement trials is predominantly determined by other procedural elements, including claim construction analysis, on-site inspection of allegedly infringing features, and potential judicial appraisals. Nevertheless, substantial efficiency improvements could be achieved if first-instance courts were expressly authorized to advance cases to the judicial appraisal stage during the pendency of jurisdictional appeals.

Accordingly, Article 2 can be viewed as an effort by the Supreme People’s Court to expedite first-instance proceedings. It is preliminarily estimated that this provision may reduce the duration of such proceedings by approximately one month.

2. Jurisdictional Anti-Forum-Shopping Measure (Article 3)

This provision aims to curb strategic manipulation of venue by prohibiting plaintiffs from establishing jurisdiction solely through directed shipping of an accused product into a preferred court’s territorial jurisdiction, absent other substantive connections to the forum. 

The practical impact of the aforementioned provisions is limited. While the question of whether the place of receipt in online purchases could serve as a jurisdictional nexus was highly contentious in 2015, a decade later, it is unlikely that any plaintiff would still opt to file a lawsuit at such a venue.

However, the "delivery location freely chosen by the plaintiff" referenced in Article 3 could, in practice, adversely affect patent holders. The ambiguity surrounding "freely chosen" may incentivize plaintiffs, for evidentiary purposes, to utilize a designated distributor to place an order with the defendant, subsequently selecting a specific delivery location to which the defendant ships the infringing products. According to the Draft for Comments, such a delivery location would not qualify as a valid jurisdictional nexus. Consequently, the practical implication of this provision is that plaintiffs will need to exercise greater diligence in selecting the principal place of business of distributors—such as their actual operational address, the physical location of an online store, the shipping origin of an online store, or the registered domicile of the store owner—to establish proper jurisdiction.

Overall, these provisions essentially codify and affirm the prevailing jurisdictional practices currently in use.

3. Promissory Estopple for Patentee (Article 11)

Article 11 clarifies that the principle of estoppel also applies to narrowing amendments or statements made during prosecution and invalidation proceedings, even if such limitations were not explicitly rejected by the relevant authorities. This provision reinforces the duty of good faith imposed on patentees throughout both the validity determination and enforcement stages.

Based on our practical experience, this article will significantly impact scenarios where a patentee advances a narrowing interpretation during invalidation proceedings, yet such interpretation is not formally recorded in the final invalidation decision. Previously, whether estoppel should apply in such circumstances during subsequent infringement litigation fell largely within the court’s discretion. However, Article 11 of the Draft for Comments explicitly codifies its applicability. Consequently, patentees must henceforth exercise greater caution regarding every amendment and statement submitted in response to invalidity challenges. Written submissions, oral hearing recordings, and transcripts from invalidation proceedings may all serve as critical evidence in future infringement suits to restrict the scope of claim interpretation.

This provision rightly prevents patentees from unilaterally retracting limitations they have previously conceded, thereby upholding the principles of transparent technical contribution and good faith. It operates in a manner analogous to the "file-wrapper estoppel" or "doctrine of prosecution history estoppel" under U.S. patent law—namely, a patentee may not disavow during litigation the concessions made before the patent office.

4. Lack of Definiteness (Article 15)

The new provision grants court the authority to dismiss claims, thereby compelling right holders to rigorously evaluate the clarity of their claims prior to initiating litigation. This serves as a critical reminder to both patentees and patent attorneys that patent drafting and litigation strategies must avoid ambiguous or indefinite claim language, lest the right to assert such claims be procedurally barred.

In practice, this provision bears functional resemblance to the "indefiniteness" ground for patent invalidation. Notably, even before the China National Intellectuality Property Administration’s Reexamination and Invalidation Department, invalidation decisions based solely on "indefiniteness" are relatively uncommon. Consequently, it is anticipated that courts will likely exercise restraint and apply this new discretionary power sparingly in subsequent judicial practice.

5. Technical Data Used if Examination Obstructed (Article 16)

Article 16 largely codifies existing procedural norms in current judicial practice. However, it may introduce a novel operational mechanism through its potential interplay with the "order to produce evidence" under the Civil Procedure Law of China. Specifically, if a patentee can demonstrate that "objective obstacles exist in conducting an on-site inspection of the alleged infringing product," the patentee may petition the court to order the defendant to submit relevant technical documents, such as technical drawings or manuals. Should the defendant refuse to comply, adverse inferences may be drawn against the defendant. If such documents are produced, they may then serve as the basis for applying this provision.

If such coordination between procedural mechanisms is recognized and implemented, it would significantly alleviate the burden of proof on plaintiffs. The practical application and judicial interpretation of this approach will require further observation in subsequent enforcement and case law.