Zunxia Li, Partner of IP March

Background

Article 45 of the Patent Law of the PRC provides that, after a patent is granted, any entity or individual that considers the grant inconsistent with the relevant provisions of the Patent Law may request that the China National Intellectual Property Administration (“CNIPA”) declare the patent invalid. Chinese law does not generally require the invalidation petitioner to have a direct legal or commercial interest in the patent concerned.

Accordingly, the use of a “straw man” petitioner—particularly an individual acting as the named invalidation petitioner—has historically been accepted in Chinese patent invalidation practice. Companies have frequently adopted this strategy either to challenge blocking or threatening patents held by competitors without publicly disclosing their involvement, or, in the case of foreign companies, to preserve anonymity and avoid certain procedural formalities associated with filing in their own names.

This long-established practice appeared to face significant restrictions following the latest revision of Patent Examination Guidelines(“the Guidelines”), effective as from January 1, 2026. The revised Guidelines added a new admissibility requirement concerning the petitioner’s genuine expression of intent. Specifically, Part IV, Chapter 3, Section 3.2 of the Guidelines now provides that an invalidation request will not be accepted where the filing of the request does not reflect the genuine intention of the named petitioner. CNIPA explained that the amendment was intended to address circumstances such as the unauthorized use of another person’s identity, forged signatures, and fabricated powers of attorney.

Even before the amendment took effect, CNIPA had strengthened its scrutiny of petitioners’ identities, signatures, and authorizations, and certain requests suspected of not reflecting the named petitioner’s genuine intention had been rejected or found inadmissible.

These developments led many practitioners to conclude that the use of a straw-man petitioner—particularly an individual petitioner—would no longer be a viable strategy in Chinese patent invalidation proceedings.

A recently published judgment of the Supreme People’s Court (“SPC”), however, has provided important guidance from judicial perspective and suggests that the door has not been completely closed.

Case Introduction

The case concerned Chinese invention patent No. 201710835207.4, entitled “Data Processing System and Method”, owned by Weihai Yuancheng Information Technology Co., Ltd. (“Weihai Yuancheng”).

An individual, Mr. Hao, filed a request with the Patent Reexamination and Invalidation Department (“PRID”) of CNIPA seeking invalidation of the patent. After examination, PRID of CNIPA issued Invalidation Decision No. 566584, declaring the patent invalid in its entirety. Weihai Yuancheng challenged the decision before the Beijing Intellectual Property Court, which dismissed its claims in administrative judgment No. (2024) Jing 73 Xing Chu 7906 dated December 9, 2024.

Weihai Yuancheng subsequently appealed to the Intellectual Property Tribunal of the Supreme People’s Court (“SPC”). One of its principal grounds of appeal was that Mr. Hao was not qualified to act as the invalidation petitioner and that the invalidation request had been filed in bad faith and potentially constituted a sham proceeding. In support of this argument, Weihai Yuancheng asserted that:

(1)     Mr. Hao had no direct or indirect legal or commercial interest in either Weihai Yuancheng or the patented technology;

(2)     the patent was also the subject of a separate patent infringement action brought by Weihai Yuancheng against another company, and the attorney representing the defendant in that infringement action was also acting as Mr. Hao’s representative in the invalidation proceeding; and

(3)     the receipt for the invalidation filing fee bore the name “DeepGlint”, suggesting that the fee had been paid by a third party rather than independently by Mr. Hao.

The SPC Judgment- No. (2025) Zui Gao Fa Zhi Xing Zhong 71

The SPC rejected Weihai Yuancheng’s challenge to Mr. Hao’s qualification as the invalidation petitioner.

Referring to Article 45 of the Patent Law, the SPC emphasized that any entity or individual may request the invalidation of a granted patent. Weihai Yuancheng had failed to submit evidence establishing either that the invalidation request did not reflect Mr. Hao’s genuine intention or that any other statutory circumstance existed that would disqualify him from filing the request.

The SPC therefore concluded that CNIPA and the first-instance court had not erred in recognizing Mr. Hao as a qualified petitioner. The appeal was dismissed and the first-instance judgment was affirmed.

The SPC judgment indicates that a natural person with civil litigation capacity who genuinely intends to file the invalidation request is qualified to act as an invalidation petitioner. Whether that person has a direct interest in the patent owner or the patent, or has been retained, instructed, or financially supported by another interested party, does not in itself determine the person’s eligibility to file the request.

Implications for the “Straw Man” Strategy

The SPC judgment suggests that the “genuine expression of intent” requirement should not be treated as requiring the named petitioner to be the ultimate commercial beneficiary of the invalidation, nor should a request automatically be regarded as inadmissible merely because:

(1) the named petitioner is acting at the request of another party;

(2) another party is financing the invalidation proceeding;

(3) the petitioner’s attorney also represents an interested party in related litigation; or

(4) the named petitioner does not independently benefit from invalidation of the patent.

Instead, the central issue is whether the named petitioner is real, has knowingly and voluntarily consented to the invalidation request, and has genuinely authorized the filing.

The SPC judgment further indicates that a patent owner alleging the absence of genuine intention must produce substantive supporting evidence. Suspicious circumstances or commercial links alone may not be sufficient.

In the case at issue, the relationship between the petitioner’s attorney and the defendant in the related infringement litigation, together with evidence that a third party may have paid the invalidation filing fee, did not establish that the request had been filed without Mr. Hao’s knowledge or consent.

Accordingly, the judgment should not be understood as holding that every straw-man arrangement is automatically lawful or acceptable. Rather, it confirms that a properly authorized filing made by a real and willing nominal petitioner may remain viable, even where another party is the ultimate commercial sponsor of the invalidation action.

The practical dividing line is therefore not necessarily between an interested petitioner and a disinterested petitioner, but between a genuine, informed, and authorized petitioner and a fabricated, impersonated, or unwilling petitioner whose identity or authorization has been improperly used.

Practical Recommendations

Based on the SPC judgment and recent CNIPA practice, companies—particularly overseas companies—considering the straw-man strategy should take the following precautions:

1. Use a genuine and identifiable individual or entity

The named petitioner must be a real person or legally existing entity. A fictitious identity, fabricated entity, or person whose identity cannot be properly verified should not be used.

2. Obtain informed and express consent

The named petitioner should be informed of the proposed invalidation request and should expressly agree to act as the petitioner. A company should not use another person’s identity without that person’s knowledge or authorization.

3. Ensure proper execution of documents

The invalidation request, power of attorney, authorization documents, and other documents requiring the petitioner’s signature should be personally signed by the petitioner or properly executed by a duly authorized representative in accordance with the applicable legal requirements.

Signatures should not be affixed by another person without proper authorization. Particular care should be taken to avoid inconsistent signatures, unauthorized electronic signatures, fabricated documents, or other irregularities that may give rise to challenges concerning the petitioner’s genuine intention.

4. Structure fee payment carefully

Where practicable, official fees should be paid by, or clearly associated with, the named petitioner or the petitioner’s appointed patent agency or law firm.

Although third-party payment alone does not necessarily disqualify the petitioner, direct payment by an undisclosed interested party may provide the patent owner with grounds to question the petitioner’s independence or genuine intention. The payment arrangements should therefore be structured and documented carefully.

Conclusion

The revised Patent Examination Guidelines have undoubtedly increased the procedural risks associated with straw-man invalidation filings in China. They empower CNIPA to reject requests filed through fabricated identities, forged signatures, unauthorized powers of attorney, or other arrangements that do not genuinely reflect the intention of the named petitioner.

However, the recently published SPC judgment indicates that the use of a straw-man petitioner has not been prohibited altogether.

A named petitioner is not required to have a direct interest in the patent or the patent owner, nor is the petitioner necessarily disqualified merely because the invalidation proceeding is initiated, instructed, or financed by another interested party.

Provided that the named petitioner is real, knowingly consents to the proceeding, properly authorizes the filing, and personally executes the relevant documents, the use of a straw-man petitioner may remain a viable means of preserving the ultimate challenger’s anonymity in Chinese patent invalidation proceedings.

Nevertheless, because CNIPA is applying heightened scrutiny to the authenticity of petitioners’ identities and intentions, companies adopting this strategy should ensure that the entire filing process is carefully structured and documented. Any irregularity concerning the petitioner’s identity, signature, authorization, or supporting documents may result in the invalidation request being rejected as inadmissible.