In protecting intellectual property rights in China, the effect of a lawyer’s letter is generally limited. Lawyer letters have also been sent with caution because they can have unpleasant side effects. They can not only trigger aggressive countermeasures from the recipient, but also damage the legitimate rights and interests of the opponent, triggering unfair competition proceedings. This is especially true in the case of patent infringement if the target or scope of the lawyer’s letter is too broad.
Now, however, the Supreme People’s Court has assigned a new role to the lawyer’s letter in punitive damages in civil IP cases. According to this interpretation, intent to infringe is a condition for being able to seek punitive damages in civil IP cases. In which case intent is present is illustrated by situations in practice.
If the informed and warned defendant continues the infringement, the continuation of the infringement can be considered intentional. We expect that cease-and-desist letters may become a common method for patent owners to obtain punitive damages in China in the future. Therefore, the use of cease-and-desist letters in patent infringement litigation will become more important and frequent.
China Intellectual Property Blog 