Searching for a seller

As patents become increasingly important assets for many companies operating in China, more and more patent litigations have sprung up across the country. One of the earliest steps that a patentee has to consider is where to file its lawsuit, especially if it is against a large manufacturer influential at the place of its domicile. In order to avoid the manufacturer's home jurisdiction, the patentee may need to identify a seller of the allegedly infringing product, and file the lawsuit against both the manufacturer and the seller with a court at the place of the seller. Such court's jurisdiction over both the manufacturer and the seller rests on paragraph 1, Article 6 of the Interpretation on Several Issues Concerning the Application of the Law in Trials of Patent Infringement Disputes (最高人民法院关于审理专利纠纷案件适用法律问题的若干规定) (the Provisions).

The full text of paragraph 1, Article 6 reads, “where the plaintiff files an action only against the manufacturer of the infringing products and not against the seller, and the place of manufacturing of the infringing products is not the same one as the place of selling, the court of the place of manufacturing shall have the jurisdiction; where the manufacturer and the seller are sued as the joint defendants, the court of the place of selling shall have the jurisdiction” (emphasis added). Article 6 is the only source of law specifically dealing with jurisdiction issues in patent cases involving multiple defendants. Despite its importance, Article 6 has generated different readings in practice which have led to a great deal of debate and confusion, and its application may require further clarification from the Supreme People's Court (SPC).