In 2015-2016, Shanghai Intellectual Property Courtaccepted a total of 1,011 patent cases with 657 concluded, including 887infringement cases accounting for 87.7%, 77 ownership cases accounting for 7.6%, 17 contract cases accounting for 1.7%, 19 pretrial evidence preservation cases accounting for 1.9% and other patent cases accounting for 1.1%. Among those concluded, 225 were ended with judgments, accounting for 34.3% and 370 ended with mediation and withdrawal, accounting for 56.3%. The court hereby summarized the characteristics of patent cases, analyzed the main problems found in their trials and put forward some countermeasures and suggestions.

I. Basic characteristics

1. It takes long time to trial infringement cases. The trial of patent infringement cases ended with judgment lasted 243 days on average while that of other first-instance IPR cases lasted 152 days on average. Among them, trial of cases involving invention patent infringement, utility model patent infringement and design patent lasted 276 days, 212 days and 228 days on average respectively, mainly because it's difficult to find technical facts in patent cases or the parties raise an objection to subject matter jurisdiction or declaration of invalidation of patent rights was made.

2. Most of foreign-related cases involve invention patentinfringement. Shanghai Intellectual Property Courtaccepted a total of 152 foreign-related patent cases, accounting for 15.1% of all cases. Among them, 94 were related to invention patentinfringement, accounting for 61.8% of the foreign-related patent cases, covering 14 countries (US, Japan, Sweden, Germany, etc.) and such fields as textiles, packaging, medical treatment, machine tools, cars and so on.

3. Internet transactionhas become the main way to obtain alleged infringing products. Given that Internet transactions are featured by easy access to information,high concealment and low evidence collection cost, obligees often fix the evidences of infringement by purchasing the alleged infringing products on the Internet under notarization to prove that the defendant has committed the act of producing and selling the alleged infringing products.

4. Exhibition has become a main way for obligees to safeguard their rights. Duringexhibitions, obligees often apply for preservation and notarization to fix the evidences that the defendants have sold or promised to sell the alleged infringing products. Among pretrial evidence preservation cases accepted by Shanghai Intellectual Property Court, 73.3% involved application for seizing or impounding a party's show pieces at the exhibitions.

5. Technical investigators participate in ascertaining the technical facts under dispute. Since its establishment one year ago, Technical Investigation Division of Shanghai Intellectual Property Court has accepted 193 technical consultations related to the patent involved and dispatched technical investigators to appear in 13 court sessions at the request of the collegial panel, who assisted judges making accurate and objective judgmenton technical facts through on-site technical investigations, asking the parties in court sessions and issuing technical examination opinions, etc.

6. It's commonly seen that patentees claim for statutory compensation. Statutory compensation was adopted in all of 182 cases ended in judgment and with specific amount of compensation, mainly because the patentees failed to submit evidences proving their actual losses, infringers' illicit profits or patent royalties.

II. Main problems

1. Patent management system wasn't implemented effectively. Some enterprises didn't implement their patent management systems effectively in daily activities. For example, a company was brought to court by its staff as he was unaware of the company's patent reward system and thus didn't receive the awards for a patented technology invention; a  dispute arose between the staff and the company because the staff never got definite reply from the company's management as to the ownership of technology patent related to his work and it wasn't until the staff applied for the patent and got authorized that the company paid attention to it.

2. Enterprises didn't have strong legal awareness and risk awareness. Some enterprises didn't provide enough education on patent laws and service invention laws, resulting in dispute over the right of patent application and dispute over patent right. For example, some technical personnel applied for patentsfor the technical R&D achievements made by the company without authorization; some technical personnel applied for patentsfor technical solutions identical or similar to service invention-creations. In addition, some enterprises have a weak management awareness, legal awareness and risk awareness. They didn't sign a contract with the manufacturer nor have the manufacturer issue sales invoices when purchasing thealleged infringing products involved and hence have to bear the legal liability of compensating for economic losses, etc.

3. Lack reasonable expectations regarding the litigation outcome. Among patent infringement cases concluded by the court with judgment, plaintiff's winning rate in cases involving invention patent infringement, utility model patent infringement and design patent infringement accounted for 62.2%, 72.9% and 76.2% respectively. Winning rate in cases involving invention patent infringement is relatively low, mainly because technical solutions involved in invention patents are often complex, and it's difficult for obligees to understand the technical solutions of the alleged infringing products and for judges to determine whether the technical features of alleged infringing products fall under the scope of protection of the patent involved, which are prone to misunderstanding and misjudgment.

4. Professional litigation ability wasn't strong. In patent infringement lawsuits, some parties concerned didn't prepare sufficient evidences for determination of the protection scope of the patent involved, comparison, analysis and sorting of technical features, defense for existing technologies and infringement damages, etc nor have full understanding of the principles and methods stipulated bay law for determination of patent infringement, all of which may affect theprogress of the proceedings and make the court dismiss their claims.

III. Countermeasures and suggestions

1. Implementpatent strategy and improve innovation ability. Enterprises should strengthenindependent R&D, improve their innovation ability, constantly create valuable patents and yield patent value; on the other hand, they should pay attention to the cultivation of patent awareness and culture,establishpatent risk prevention awareness to protect their patents, and avoid infringing upon others' patents through counterfeiting, imitation and plagiarism.

2. Implement management system and strengthen patent protection. Enterprises should attach importance to their patent creation and management from the start-up stage by formulating and implementing patent management system in time, regulating the patent operation procedures, paying attention to the introduction and training of patent management personnel, strengthening patent publicity, education and training, and implementing the management systems to protect the patents and prevent patent infringement.

3. Enhanceevidenceconsciousness and strengthen proof-providing. The parties should make full preparations and take the initiative to prove evidence, with due attention to the means of obtaining evidence and relevance and probative force of such evidence, as well as the time limit for adducing evidence, so as to provide basis for the court to determine the infringement accurately and amount of damages appropriate to the market value of the patent.

4. Improvelitigationability and optimize the litigation effect. The parties and agent ad litem should know well about the case facts, study the patent specifications and claims seriously, learn about existing technologies involved in the patent, the invention purpose, effects of invention technology and every technical feature stated in the claims, study the main technical features in the technical solutions and their functions carefully, and make scientific and objectivecomparative analysis and demonstration, thereby ensuring the smooth progress of the proceedings.