This blog addresses how recent proposals to reform China’s patent injunction practice—particularly proposals to introduce concepts of proportionality akin to eBay v. MercExchange (Sup. Ct. 2006) —compare with other injunction practices within China’s own legal system, rather than with practices in foreign jurisdictions. It supplements my prior blog post on the China IP Research Society’s December 2025 report, Empirical Study of Patent Injunction Rules in Chinese Judicial Practice and Recommendations for Institutional Improvement, by situating patent injunctions within China’s civil-law and IP administrative enforcement framework as well as discussing the potential impact on foreign rights holders in China.

I. Civil Law Baseline: Cessation of Infringement as a General Civil Remedy (停止侵害)

Chinese law treats injunction-type relief as a standard remedy for infringements of its civil law rather than as an extraordinary equitable remedy. This use of injunctions in civil cases reflects China’s civil law tradition and is codified in the PRC Civil Code as well as earlier civil statutes.  Injunction-type relief, sometimes called cessation of infringement, is also found in China’s administrative IP enforcement practice.  Article 179 of the PRC Civil Code sets forth the principal forms of civil liability, placing judicial orders to cease infringement as the first type of remedy:

“The principal forms of civil liability include:

This formulation applies across civil rights, including property rights, personality rights (the rights to “life, body, health, name, portrait, reputation, honor, privacy and other rights”), unfair competition, environmental harms, and intellectual property. It does not condition orders of cessation on findings of irreparable harm, balancing of hardships, or proportionality analyses comparable to those used in common-law equity. As a matter of law, no eBay-style remedy is imposed. In this respect, China’s approach resembles that of traditional civil-law jurisdictions where cessation of infringement generally follows from a finding of infringement as a matter of right, subject only to limited public-interest or proportionality defenses. Availability of injunctive relief is also critical to maintaining deterrence in China’s patent litigation system which generally has lower damages than many developed world jurisdictions, while also offering some advantages, such as a six month time to a first instance decision.

II. Patent Law Scope

Apart from the civil law, the PRC Patent Law (Fourth Amendment, eff. June 1, 2021) establishes how cessation of infringement is administered in both judicial and administrative disputes. Cessation applies uniformly to all three categories of patent rights: invention patents, utility model patents (实用新型), and design patents (外观设计), notwithstanding that utility models and design patents are not substantively examined, and have lower standards for inventive step and novelty except that a preliminary inventiveness examination of utility model patents was recently introduced. In practice, enforcement agencies often rely upon a CNIPA patent right evaluation report (专利权评价报告). In the judicial system, injunctive relief is handled without regard to an eBay style four-factor test but typically also with an award of damages. In the administrative system, an order to stop infringement is issued with possible fines. No eBay proportionality test is applied. Both injunction-type remedies are determined after a finding of infringement by the court or administrative agency. Neither the Patent Law nor its implementing rules articulate a proportionality or balancing test for permanent injunction.

The Civil Code and Civil Procedure Law (Art. 155) provide the procedural bases for court-ordered conduct measures. Article 65 of the Patent Law provides a basis for administrative handling of infringement disputes:

“Where a dispute over patent infringement arises, the patentee or any interested party may (可以) institute legal proceedings in the people’s court or request the department in charge of patent-related work to handle the matter. Where the department handling the matter considers that infringement is established, it may order the infringer to stop the infringing act immediately (可以责令侵权人立即停止侵权行为).” 

Cessation of infringement is framed as the ordinary remedial consequence after infringement is established. The use of permissive (“可以”) and mandatory (“应当”) language do not themselves import an eBay-style equitable balancing test.

III. Supreme People’s Court Judicial Interpretations

In the Supreme People’s Court Judicial Interpretation on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases (II) (最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释（二）), effective April 1, 2016 (the SPC JI), cessation of infringement (停止侵害) as a standard civil liability once infringement is found. The SPC JI does not, however, require courts to apply an eBay-style four-factor test before issuing permanent injunctions. Judicial discretion is exercised through narrow public-interest doctrines. Article 26 of the SPC JI provides:

“Where the defendant is found to have infringed a patent right and the right holder requests that the defendant be ordered to stop the infringing act, the people’s court shall support such request.

However, where ordering the cessation of the infringing act would cause significant harm to national interests or the public interest, the people’s court may decide not to order cessation of the infringement, and may instead order the defendant to pay corresponding reasonable fees.”

This “shall support” (应予支持) language establishes cessation as the default rule once infringement is found and cessation is requested. Public-interest exceptions long predate the SPC JI. A well-known example is the Guangzhou Baiyun Airport glass curtain-wall utility-model patent case, Zhuhai Jingyi Glass Engineering Co., Ltd. v. Guangzhou Baiyun International Airport Co., Ltd. (Guangzhou Interm. People’s Ct. 2004), where infringement was found but cessation was denied due to public interest concerns. A mediated settlement thereafter occurred. Article 26 of the SPC JI remains operative post-2020 and has not been displaced by later JIs with respect to injunctive relief.

IV. Administrative Enforcement of Patent Rights

In addition to judicial enforcement, Chinese law provides for administrative enforcement of patent rights by the China National Intellectual Property Administration (CNIPA). Administrative enforcement plays a significant role across China’s IP system and is not limited to patents. According to publicly reported CNIPA statistics, administrative agencies handled approximately 72,000 patent infringement disputes in 2024, while SPC data reveals that the courts accepted approximately 44,255 first-instance civil patent cases in the same year. These figures are not strictly comparable, as administrative and judicial cases may differ in scope, complexity, and potential overlap. Administrative orders may also be geographically limited in scope, can result in imposition of fines, do not result in damages awards, and are governed by administrative law, not civil law. Administrative cessation orders are consistent with enforcement mechanisms across other IP regimes, including trademarks, copyrights, unfair competition, and plant variety protection. Nonetheless, the data underscore that administrative enforcement continues to represent a substantial component of China’s patent enforcement system, reinforcing the importance of understanding injunction-type relief (orders to cease infringement) to rightsholders in both administrative and judicial contexts.

Article 65 of the Patent Law authorizes CNIPA to order cessation of infringement once a violation is established. Implementing rules also place this injunctive relief at a high priority by requiring that where infringement is established, the competent authority shall order immediate cessation (应当责令立即停止侵权行为). As with patents, such enforcement does not involve damages, is geographically limited, etc.

The Fourth Amendment to the Patent Law, Art. 70(1) (eff. 2021) also authorizes CNIPA, at a national level, to conduct administrative adjudication of “major patent infringement disputes” (重大专利侵权纠纷行政裁决). CNIPA issued the Measures for Administrative Adjudication of Major Patent Infringement Disputes (重大专利侵权纠纷行政裁决办法, eff. June 1, 2021) (the “Major Case Rules”, which set criteria for such “major” disputes. According to the Major Case Rules,  when CNIPA determines that infringement is established in a case deemed to have nationwide significance, it may issue an administrative adjudication ordering the respondent to immediately stop the infringing act, thereby extending injunction-type relief beyond local administrative enforcement and approximating nationwide judicial remedies. The order is obligatory using the Chinese word for “shall” (yingdang) (应当责令立即停止侵权行为) （Art. 21）. These Major Case Rules have created a pathway for CNIPA to model a more nationwide, quasi‑judicial administrative cessation remedy alongside (and potentially in competition with) civil enforcement, even though ordinary administrative orders remain geographically limited. 

V. Empirical Data on Injunctions and Enforcement Scale

Due to limited transparency, it is not possible to comprehensively determine injunction or injunction-type relief rates without access to internal databases. Studies coding China Judgments Online decisions and other databases, including work by Bian Renjun (2018) and Brian Love et al (2016), report permanent injunction grant rates exceeding 90 percent where infringement is found. The remaining 10% is likely due to such factors as the patent right has expired or the litigant was only seeking damages. Nonetheless, the data upon which these studies are based have serious limitations. My own research and testimony indicated that during the time of the Bian and Love studies, approximately 50% of all decided cases had been published. Since those studies, case publications have been delayed, cases have been anonymized prior to publication (and possibly edited), and overall publication rates have declined, making the data less current and reliable and suggesting that there may be increased risks of creating substantial selection bias. Against this backdrop, recent proposals to introduce a generalized proportionality test for patent injunctions in China raise several distinct concerns when viewed within China’s existing civil-law and administrative enforcement framework.

First, introducing a routine proportionality analysis in patent cases risks spillover effects beyond patent law. As discussed above, cessation of infringement functions as a standard remedy across China’s IP system and civil law more broadly, including trademarks, copyright, unfair competition, trade secrets and plant variety protection. Injunctive relief, including preliminary injunctions, can be especially important in trade secret cases due to the likelihood that the harm caused by the theft of trade secrets may exceed the infringer’s ability to pay. Moreover, trade secret misappropriation has historically been the least likely to benefit from injunctive relief by the Chinese courts with injunctions awarded only 50% of the time. A proportionality requirement limited to patents would introduce internal inconsistency within China’s remedial framework and could generate pressure to extend similar balancing requirements to other areas of IP and civil enforcement such as trade secrets. As articulated in my prior blog, Crossing the Rule of Law River by Feeling the IP Stones, intellectual property law in China has long served as a leading edge of Chinese legal reform. A broader impact from this type of reform in patent law remedies is hardly unprecedented, with potential spillover into all areas of IP and civil law.

Another factor warranting caution in interpreting available injunction data is the relatively low utilization of China’s civil patent litigation system by foreign right holders compared to domestic firms, which was publicly discussed in an exchange of letters between USPTO Director David Kappos and Commissioner Tian Lipu. As a result, published civil judgments may disproportionately reflect disputes involving domestic parties or repeat local litigants, increasing the risk of selection bias when drawing broader conclusions about injunction practices. This asymmetry further complicates efforts to infer systemic trends from publicly available civil case data alone.

Second, proposals for reform are being advanced in an environment of limited empirical transparency. Available data on patent injunction outcomes are incomplete and subject to significant selection bias due to declining publication of judicial decisions and the opacity of administrative enforcement. Official statistics indicate that administrative patent enforcement remains substantial in scale relative to civil litigation, yet administrative decisions are rarely published in a systematic manner. Without reliable baseline data on either judicial or administrative cessation orders, it is difficult to assess whether perceived problems in patent injunction practice reflect substantive over-enforcement or instead reflect structural features of reporting and publication. If injunctive relief becomes more challenging in a civil context, it would also not be surprising that the administrative system becomes more attractive to litigants. This civil/administrative competitive framework has long functioned in China’s IP system, with China’s administrative trademark system functioning as an important enforcement vehicle for both domestic and foreign litigants who have traditionally used the civil system less than the administrative system. Moreover, the administrative system often benefits from the availability of significant enforcement resources. In trademark enforcement, these human resources have equaled “a small European country.”

Third, expanding judicial discretion through proportionality analysis may adversely impact China’s large community of small businesses, many who own utility model and design patent rights. In the traditional eBay equitable analysis, consideration of the “balance of hardships” between plaintiffs and defendants must be applied. The eBay analysis in the U.S. has disproportionately affected small inventors who also typically own design patents and incremental inventions. The proponents of proportionality may wish to look carefully at the U.S. experience post eBay and its impact on these small inventors.

Fourth, expanding judicial discretion through proportionality analysis may have a differential impact on foreigners. Procedural rules governing foreign-related cases make it easier to extend adjudication timelines and reduce judicial accountability for delay, potentially increasing opportunities for discretionary balancing in such cases. To the extent such discretion disproportionately affects foreign patent holders, these reforms may also raise concerns under China’s national treatment obligations, including under the TRIPS Agreement.

I hope that the drafters of the policy paper from the China IP Research Society seriously consider the impact of their proposed policy change on other areas of Chinese law and practice, rather than focusing on comparisons to foreign practices which operate under different assumptions from Chinese law.