An overseas patent owner may find its genuine products offered by a reseller outside its preferred distribution network. Before treating that listing as patent infringement, examine how those particular goods entered circulation. Chinese patent law distinguishes specified dealings in products already sold by the patent owner or an authorised party from unauthorised implementation of the patent. The transaction history and product identity therefore matter.
Start with the statutory exception
Article 75(1) of the Patent Law addresses patented products, and products directly obtained by a patented process, after sale by the patentee or an authorised entity or individual. It excludes subsequent use, offering for sale, sale and import of those products from patent infringement. This is commonly discussed as patent exhaustion.
The rule concerns the relevant products and an identified qualifying sale. It does not say that every product bearing a genuine-looking label has been authorised, or that purchasing one unit grants permission to manufacture further units. Establish the factual route before deciding whether the exception answers the allegation.
Identify the seller’s authority at the relevant time
Build a chain from the patent owner to the transaction relied upon. Where the first sale was made by a licensee or another authorised party, obtain the relevant agreement, authority documents and any amendments lawfully available. Check the entity, patent, product category and period. A distributor’s assurance that the goods are “official” should lead to supporting records, not replace them.
Separate the authority to sell existing products from authority to manufacture them. A business may have one permission without the other. Where quantity, territory or other limits are disputed, review the actual agreement and transaction rather than assuming that a contractual breach necessarily resolves the patent question. Contract interpretation and the statutory defence require their own analysis.
Connect the transaction to the goods in dispute
Ask for the purchase agreement, invoice, payment record, delivery note and inventory entry. Match serial numbers, batch codes, model specifications and quantities wherever those identifiers exist. If goods passed through several intermediaries, a table linking each transfer is easier to audit than a folder of unrelated invoices.
Do not require a serial number where the product never had one, or invent a link from matching descriptions alone. Explain alternative identification evidence and its limits. Packaging photographs, warehouse records and consistent batch information may help, while conflicting quantities or unexplained substitutions should remain explicit issues in the review.
Separate proven inventory from disputed stock
In a hypothetical reseller’s warehouse, an invoice supports purchase of a particular batch from an authorised supplier, but the live listing offers several versions from mixed sources. That invoice does not automatically explain every unit advertised. Identify which stock it covers and investigate the remainder separately, without assuming that all goods are either genuine or unauthorised.
For a rights holder, preserve the listing and obtain a traceable specimen before making broad assertions. Compare the specimen with the alleged authorised batch. For the reseller, retain records in their original form and explain ordinary stock movements. A reconstructed spreadsheet should identify its source documents and any assumptions.
Distinguish resale from making another product
Article 75(1) lists downstream acts following a qualifying sale; it does not list new manufacture. A purchase invoice therefore cannot, by itself, justify using a purchased item as a template for producing additional patented products. Record what the challenged business actually does: resells a unit, assembles components, replaces parts or manufactures a further item.
Questions involving refurbishment, repair or reconstruction require a closer factual and technical assessment. Do not apply an invented percentage of replaced parts as a safe harbour. Keep before-and-after photographs, component records and a description of the work performed. The word “refurbished” on a listing is not a legal conclusion about the activity.
Keep other rights and remedies separate
A patent conclusion does not dispose of every issue affecting the transaction. Misleading statements of affiliation, altered branding, confidential information or a breached distribution agreement may raise separate questions. Identify the right, the responsible person and the available evidence for each concern instead of using the patent claim as a substitute for a different dispute.
For goods moving across borders, preserve origin, sale and import documents and assess the Chinese claim on its own facts. Foreign enforcement advice or a settlement addressing another jurisdiction should not be assumed to determine the Chinese position. Conversely, the inclusion of import in Article 75(1) should not be omitted from the initial legal review.
The practical output is a product-and-transaction map: the patent relied upon, the qualifying sale, the authority behind it, the goods traceable to that sale and the conduct now challenged. Mark unresolved links before sending a notice or choosing proceedings. This supports a proportionate response without promising that an invoice alone will defeat or establish liability.
Contact Pan Jianxing with the patent number, product identification and a non-confidential outline of the distribution chain. Sensitive agreements should follow only after the conflict check and secure document arrangements.
Official sources & legal review
Legal position checked 2026-11-02. Official Chinese texts govern; the English analysis is a summary.
General information about mainland China. The applicable law, rights, evidence and procedure require review for a specific matter.
Pan Jianxing
China-qualified lawyer · Partner, 北京市长安律师事务所
Beijing & Shenzhen
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