Technical Appraisal in China IP Litigation: Define the Question Before Commissioning the Work

By Pan Jianxing · Published 8 October 2026

An intellectual property dispute may turn on a technical comparison that the parties cannot resolve through photographs or ordinary business records. An overseas rights holder should define the disputed technical fact before asking for an appraisal. A broad request to confirm infringement can obscure the actual issue and lead to a report that does not answer the question the court needs to decide.

In this guide, appraisal means a specialist assessment commissioned through the court process. A private technical report, a party's specialist attending a hearing and a court-commissioned appraisal should be identified by their actual roles. Do not give a report a procedural status it has not obtained.

Identify the specialist question

Article 19 of the Supreme People's Court's Provisions on Evidence in Intellectual Property Civil Litigation, Fa Shi [2020] No. 12, lists specialist matters that a court may refer for appraisal. They include comparisons of patent technical features, works, trade-secret information and integrated circuit layout designs, as well as the authenticity and integrity of electronic data.

State the proposed question in terms of the feature, material or information to be examined. For example, a copyright comparison requires identified versions of both works; an electronic-data issue requires identification of the disputed files and the concern about authenticity or completeness. These are descriptions of the inquiry, not assumptions that infringement or tampering has already been established.

Explain why the question matters to the claim and what existing evidence already addresses it. The court's power to commission an appraisal does not mean every disputed fact needs one. Narrowing the issue can reduce unnecessary collection and testing while leaving the legal assessment with the court.

Prepare reliable comparison materials

List each proposed input, its source, date, version and link to the pleaded issue. Keep the original and any working copy distinguishable. Where a physical sample is proposed, explain how it was obtained and handled. Where a design or source file changed over time, identify the version relevant to the disputed conduct rather than selecting whichever version is easiest to retrieve.

Article 23 includes, among the factors for reviewing an appraisal opinion, whether the submitted materials were examined by the parties through the evidential process and are suitable for appraisal. Do not assume that sending files directly to a specialist resolves disputes about their origin or completeness. Raise those disputes and proposed solutions through the court's procedure.

• Identification: give each item a stable identifier used consistently in the application and technical questions.
• Provenance: identify who supplied the material and the records supporting its connection to the case.
• Condition: record alterations, incomplete parts, inaccessible functions or other limitations.
• Comparison: explain why the chosen materials are suitable counterparts for the question proposed.

Address scope and the proposed specialist

Under Article 22, the court hears the parties' views and determines the scope of appraisal in light of their evidence. During appraisal, the court may permit a requested scope change where the other party does not object. A commercial instruction to an adviser should not be treated as authority to expand a court-commissioned assignment.

Article 21 addresses fields without a unified registration system for appraisers and appraisal institutions. It permits the court to select a professional institution or person with an appropriate technical level through the prescribed selection procedure. Absence from a register that does not govern that field is not, by itself, a complete analysis of suitability.

Focus on relevant expertise, experience, the proposed method and potential conflicts. Ask whether the proposed person can answer this particular question and explain the limitations. Article 20 allows certain testing work to be assigned to another testing organisation with court permission or both parties' agreement, while the appraiser remains legally responsible for the resulting opinion. Record that arrangement rather than leaving the testing body's role unclear.

Review the reasoning, not just the conclusion

Article 23 directs attention to qualifications, knowledge and skills, methods and procedure, reliable technical means, the suitability of inputs, sufficient reasoning and issues affecting impartiality. Use those factors to organise a response to the report. A bare disagreement with its conclusion does not identify what should be explained or corrected.

Prepare a table linking each disputed conclusion to the input, method or reasoning challenged and the evidence supporting the objection. Separate an incorrect product version from a disagreement about how a feature operates. Explain the practical consequence of the problem. Avoid asserting that the entire report is worthless where the concern affects only one bounded question.

Coordinate specialist participation and confidentiality

Article 28 allows a party to apply for a person with specialised knowledge to attend court and give views on professional issues; questioning requires the court's permission. Such participation can help explain a technical disagreement, but should not be labelled a court-appointed appraisal simply because the person is an expert.

If the materials contain trade secrets or other business information requiring confidentiality, plan protection before access. Article 26 provides for confidentiality measures and, where the court finds it necessary on application, limits on the people permitted access. Identify the specific sensitive material and proposed handling arrangement; a confidentiality label alone does not determine the evidential issue.

For an initial assessment, contact Pan Jianxing with the type of right, disputed technical question and a non-confidential description of the available materials. The useful starting point is a precise question and a reliable set of inputs, followed by the court's determination of the appropriate procedure.

Pan Jianxing
China-qualified lawyer · Partner, 北京市长安律师事务所
Beijing & Shenzhen
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