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Be Well Prepared before Sending a Warning Letter in China


 
Voice: Mavis WANG
Project Administrator

This is Linda Liu & Partners on air. Welcome back.
 
Today, let’s talk about sending warning letters for possible patent infringement
 
If you believe that someone is infringing your patent right in China, you may be angry and can't help to send him a warning letter(C&D letter) demanding him to stop the infringement.
 
Sending a warning letter is indeed an option to stop infringement. However, you should be prepared before sending the warning letter or you might get unfavorable results due to haste.
 
It is advisable that the following preparation be done before sending a warning letter to avoid legal risks and to do the first job of gathering evidence for possible future litigation.
 
(1) To purchase the suspected infringing product under the witness of a Chinese notary. The sender may be sued by the warning letter recipient based on non-infringement. The infringement evidence obtained by notary purchase can be used in the non-infringement lawsuit.
 
(2) To conduct patent infringement analysis to determine whether the suspected infringing product falls into the scope of protection of the Chinese patent.
 
In most cases, one product purchased under a notary should be sufficient, and the attorney will seal it after disassembling or taking pictures. If further analysis and identification are needed, more products need to be purchased.
 
Upon confirming there is a high likelihood of infringement after analysis, the patentee may then send a warning letter (C&D letter). So the analysis by the experienced patent attorney is essential.
 
If the warning letters are sent to the product distributors or customers, the sender may be sued based on unfair competition. In this case, the court will ascertain whether the obligation of prudent attention was exercised in sending the warning letter.
 
Therefore, without detailed infringement analysis and confirmation of the high likelihood of infringement, there will be a considerable legal risk for sending the warning letter.
 
Additionally, if the budget is sufficient, it is also advisable to conduct a thorough investigation of the suspected infringer's production and sales, future trends, and intellectual property rights held by the suspected infringer in advance.
 
That’s all for today’s topic. If you would like to know more about IP practice in China, please feel free to contact us. See you next time.


 
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