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China’s Supreme People’s Court Clarifies That Defendant May Be Entitled to Attorney Fees and Expenses in IP Litigation

On June 3, 2021 and effective the same day, the Supreme People’s Court (SPC) issued the “Approval of the Supreme People’s Court on the Issue of the Defendant’s Request for Compensation for Reasonable Expenses in Intellectual Property Infringement Lawsuits on the Grounds of the Plaintiff’s Abuse of Rights” (最高人民法院关于知识产权侵权诉讼中被告以原告滥用权利为由请求赔偿合理开支问题的批复). The Approval is in response to a request for instructions from the Shanghai Higher People’s Court for a defendant’s request for compensation and allows for compensation in intellectual property infringement lawsuits for attorney fees and expenses when the plaintiff’s lawsuit is an abuse of rights and damages defendant’s interests.

A translation of the Approval follows:

The Shanghai Higher People’s Court:  

Your Request for Instructions on Issues concerning Reasonable Expenditure Claimed by A Defendant in an Intellectual Property Infringement Lawsuit on the Ground that the Plaintiff Abused His Rights (No. 215 [2021], 沪高法, Shanghai) has been received. Upon deliberation, the following official reply is hereby made: 

In an action for infringement upon intellectual property rights, where the defendant submits evidence to prove that the action of the plaintiff has constituted an abuse of rights and damaged defendant’s legitimate rights and interests as prescribed in law, and the defendant requests the plaintiff to compensate for its reasonable expenses such as attorney’s fees, transportation expenses, hotel and food expenses paid for in the defense, the people’s court shall support such a request according to law. The defendant may also file a separate lawsuit to require the plaintiff to compensate for the above reasonable expenses.

Note that the SPC did not disclose how to determine what is “reasonable.”

Principal, and Director of the China Intellectual Property Practice

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