Author: Elliot Zhou

Partner, Patent and Design Attorney, Attorney at Law

On April 30, 2025, the China National Intellectual Property Administration (CNIPA) issued a notice on its official website, seeking for public comments on the Draft Amendments to the Patent Examination Guidelines. Among the proposed changes, a new requirement was introduced regarding the eligibility of entities who can file patent invalidation requests: the petitioner must demonstrate a "genuine intention." Requests failing to meet this requirement will not be accepted.

Under the current legal framework, Article 45 of the Patent Law clearly states that "any entity or individual" may file a patent invalidation request. In practice, "any entity or individual" typically includes the following three categories:

(i) Third parties with a direct interest in the invalidation request;

(ii) Strawmen (i.e., third parties without a direct interest in the invalidation request but who are willing to file it on behalf of others); and

(iii) The patentee themselves.

The new draft requirement for "genuine intention" appears aimed at excluding "strawmen" (and possibly even the patentee) from filing patent invalidation requests. However, in practice, determining "genuine intention" has long been a challenging issue in civil law, and it is likely to be equally difficult to ascertain in patent invalidation proceedings.

For example, if a petitioner includes a statement in their power of attorney or related contract such as, "I hereby confirm that my request to invalidate Patent XX reflects my genuine intention," would this suffice for CNIPA to recognize the petitioner’s "genuine intention"? The question would be, a strawman could easily make such declarations in practice.

Another example: If a company with an intention in invalidating a Chinese patent assigns its employee to file an invalidation request on its behalf, but the employee themselves has no direct interest in the patent. Would such an employee meet the "genuine intention" requirement?

Yet another example: A patentee files an invalidation request against their own patent, with an intention to amend the claims post-grant. For such a case, the patentee’s true intention is to "amend the claims" rather than to "invalidate the claims". Would such a patentee, as the petitioner, meet the "genuine intention" requirement?

Currently, the draft only states that invalidation requests lacking "genuine intention" will not be accepted, but it does not address whether already accepted invalidation cases should be terminated if the petitioner’s intention is later found to be non-genuine. Furthermore, if an invalidation decision has already been issued and the petitioner’s intention is subsequently found to be non-genuine, what would be the legal effect of that decision?

According to a Supreme People’s Court precedent [(2022) Supreme Court IP Final Appeal No. 716], even if the invalidation petitioner is a strawman and the agency involved violates the Patent Agent Regulations by abusing the invalidation process for improper gain, the Supreme Court ruled that this [does not automatically make the invalidation request itself ineffective], as the invalidation proceeding itself was not procedurally flawed. In other words, issues with the petitioner’s eligibility, agent qualifications, or agency misconduct do not necessarily lead to the revocation of the substantive decisions on the validity/invalidity of the patent.

In summary, while the draft introduces the "genuine intention" requirement for invalidation petitioners, CNIPA must provide further clarification on its definition and applicability. Otherwise, petitioners and agencies may remain uncertain about whether "strawmen" can still be used to file invalidation requests. Additionally, given the Supreme Court’s precedent—where petitioner eligibility would not affect the substantive outcome of an invalidation decision—it is likely that many invalidation requests will continue to be filed by "strawmen" — After all, strawmen have its own advantages because they allow the true petitioner to remain anonymous while avoiding many procedural complexities.

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