Increasing importance of the good faith principle in Chinese patent procedures

The principle of good faith is a fundamental tenet in China’s Civil Code and Civil Procedural Law. In order to improve the quality and innovation of patent applications, the principle was introduced to the Chinese Patent Law for the first time through Article 20 in the fourth amendment, enacted in 2021.

The Implementing Regulations of the Patent Law also stipulate that patent applications shall follow the principle of good faith in Rule 11, and list the principle of good faith as a ground for invalidation in Rule 69. The Patent Examination Guidelines further stipulate that if the procurement of a patent right obviously violates the principle of good faith, the Patent Re-examination Department may introduce the principle of good faith as a reason for invalidity ex officio.

At the beginning of 2025, the CNIPA published two decisions in patent re-examination and invalidation proceedings, adopting the principle of good faith for the first time and thus providing much-anticipated guidance on the application of this principle in China. This article will introduce the facts and legal reasoning in these two cases to help to facilitate understanding of the implementation details of the principle of good faith in Chinese patent practice.

This case relates to an invention patent application with the filing number 202211011233.2, entitled ‘A tinib small molecules compound and preparation method thereof’. The patent applicant submitted a copy of drug clinical trial data for 100 chronic myeloid leukaemia patients to prove that the patent application achieves the technical effect of improving drug tolerance and reducing toxic side effects in humans.

The decision, issued on February 25 2025, found that, according to the Drug Administration Law and the Measures for the Administration of Drug Registration, conducting drug clinical trials on humans in China requires pre-approval from the National Medical Products Administration and pre-registration on a publicity platform for drug clinical trial registration and information. However, upon verification, such registration information for the submitted clinical trial could not be found on a publicity platform. That is, the patent applicant had not obtained the necessary legitimate approval to conduct the drug clinical trials. Therefore, it is highly unlikely that the applicant could conduct authentic clinical trials.

In addition, in response to such issues being raised in the re-examination notification and the request for corresponding evidence for the authentic source of the clinical trial data, the patent applicant failed to submit any evidence to clarify the issue. Therefore, the decision held that the drug clinical trial data submitted by the patent applicant was fabricated intentionally, and the above acts of the patent applicant violated the principle of good faith.

In summary, to verify the authenticity of an innovation, the CNIPA might ask the applicant to provide additional documentation such as the administrative approval, considering the duty and obligation of the patent applicant.

This case involves a utility model patent with the patent number ZL201821114751.6, entitled ‘An upper and lower cutting device for a fully automatic soft material cutting equipment’. The invalidation petitioner alleged that the patent was copied by the inventors of the patent from an existing piece of equipment of the petitioner due to the inventors’ former employment by the petitioner.

The petitioner submitted two groups of evidence to this end. The first group proved that equipment with the same technical solution as the patent was sold and made public before the filing date, including sales contracts, bank transaction records, and a notarisation document recording the model name, overall structure, and parts structure of the equipment. The second group of evidence proved that the patentee knew that the technical solution was prior art when applying for the patent, including the inventors’ labour contracts as field engineers with the invalidation petitioner and the enterprise credit information public report of the patentee showing the inventors as shareholders of the patentee.

The decision, issued on March 4 2025, confirmed the authenticity of the notarised equipment, considering factors such as the completed delivery of the equipment and difficulties of structural variation for specific parts in the equipment, thus holding that the technical solution of the patent was disclosed by the equipment in the first group of evidence. The decision also affirmed the facts proved by the second group of evidence in that the inventors of the patent were former employees of the invalidation petitioner and shareholders of the patentee.

Based on the above findings, the decision held that the application copied the prior art of the petitioner, since the patented invention was substantially the same as the notarised equipment of the petitioner and the high probability of the inventors’ awareness about the relevant prior art equipment due to their role as field engineers. In addition, the patentee failed to produce any evidence for R&D of the application.

This decision also addresses the competing invalidation grounds between novelty and the principle of good faith, with the latter prevailing over the former in this case. The reason is that applying the principle of good faith can represent the facts of the case more comprehensively where the patentee fabricated the application while violating the principle of good faith. Moreover, such preference helps to advocate good faith, guide applicants to self-regulate their behaviour, promote the improvement of patent quality, and maintain a sound innovation environment.

From the above two cases, the principle of good faith has been given an important role in Chinese practice and might have a further significant impact on patent grant and re-examination procedures in the country.

Based on this trend, companies should pay attention to preserving R&D records related to patents and ensure compliance with the legal processes relating to R&D. Especially for inventions involving experimental data, the applicant needs to identify the legality and authenticity of the data source, and register and publicise information in accordance with the relevant regulations, so as to avoid the application being rejected or invalidated due to violation of the principle of good faith in patent re-examination or invalidation procedures.