Four shades for patents

Four jurisdictions, four distinct landscapes for protecting innovation

CHINA

INDONESIA

JAPAN

PHILIPPINES

Chemical industry patent and trade secret litigation in China

In January 2026, the Intellectual Property Court of the Supreme People’s Court published 73 cases with damages awards exceeding RMB10 million (USD1.4 million). Among them, cases involving chemicals, materials and complex industrial production processes constitute a significant segment.

A noteworthy trend has emerged in Chinese IP litigation concerning chemicals, materials and industrial processes. Compared with ordinary IP cases, major chemical patent and trade secret cases face a more pronounced “process black box” problem. However, once the evidentiary obstacles to proving infringement are overcome, the resulting compensation amounts tend to be substantially higher than those in typical IP disputes.

Piercing chemical process black boxes

Large-scale chemical production has distinctive features absent in general manufacturing. From project initiation, engineering design, construction, trial operation, to formal commissioning, a major chemical plant generates voluminous documentation, including environmental impact assessments, safety assessments, safety facility design, engineering design, equipment procurement, construction records, acceptance inspection, pollutant discharge permits and production operation logs.

Although the rights holder may lack direct access to the opponent’s control room for distributed control system (DCS) data, the production process can still be reconstructed incrementally through peripheral channels, such as ecological environment authorities, work safety agencies, engineering design firms, construction contractors and third-party suppliers, thereby piercing the process black box.

Cathay Biotech EIA case

The Cathay Biotech case concerning the “long-chain dicarboxylic acid refining process” serves as a typical illustration. The patent in suit was for “a refining process for long-chain dicarboxylic acids produced by biological fermentation”. The accused infringer, Guiyuan Company, leased the plant and equipment of Hanlin Company, which had previously been found to have used the infringing process, and continued production.

On review, the Supreme People’s Court found that publicly available investigation materials from the local ecological environment department showed that, after leasing the existing workshops and equipment, Guiyuan did not re-submit the environmental impact assessment (EIA) for approval.

The regulatory conclusions cited the then-effective environmental impact assessment system, which provided that re-submission of EIA documents was not required only when there were no major changes in the construction project’s nature, scale, location, production process and environmental protection measures.

Based on this, together with the original production line, product characteristics and other evidence, the Supreme People’s Court rejected Guiyuan’s assertion of having “changed the process”.

Melamine trade secret case

The “Melamine” trade secret case has landmark significance in the use of design special reports. The technology at issue was a pressurised gas-phase quenching cold process for a 50,000-ton-per-year melamine production reaction system.

The Supreme People’s Court held that the trade secrets included equipment selection and technical information concerning the structure, dimensions, shape and process parameters of related equipment and that such information played an indispensable role in constructing and operating the accused production system by the infringing enterprise.

When determining remedies for cessation of infringement, the Supreme People’s Court further included the production system and related technical documentation within the scope of disposition.

Carbon production case

The “Carbon 6 and Carbon N production line” trade secret case, concluded in 2025, further refined this logic to a more complete degree. The trade secrets asserted in that case covered plant layout, production devices and production processes.

The piping and instrumentation diagrams (P&IDs) systematically expressed the equipment, piping, valves, fittings and instruments required for production. The Supreme People’s Court stated that P&IDs not only are the fundamental basis for the design and construction of chemical plants, but also serve as essential guides for system operation, commissioning, accident handling and maintenance.

Evidence of damages To obtain a high compensation award in a chemical case, proving merely that “the patented invention or trade secret was used” falls far short of what is required. What truly determines damages is establishing how long the infringement lasted, how much was produced, how much was sold, what profits were generated, and what contribution the technology made to those profits.

Factually grounded damages model

A high compensation award does not require the rights holder to obtain a “perfect financial audit result”.

The “Melamine” trade secret case provides a typical model. In calculating damages, the Supreme People’s Court referred to annual corporate reports, relevant business segment gross profit margins and comparative data from comparable production enterprises, and combined these with the production scale of the accused production system to assess the infringer’s profits.

For large-scale production lines, this method is far more compelling than abstractly asserting that “the technology is important” because it directly links technological value to commercial outcomes and converts the defendant’s control of key financial data into an evidentiary advantage under burden-of-proof rules.

Chemical trade secret damages

For large-scale chemical projects, the question of whether to “apply for a patent or maintain a trade secret” is generally not a truly effective either-or choice.

A superior strategy is to patent core technological routes that are readily reverse-engineerable from product testing, equipment appearance or publicly available information while retaining as trade secrets the process parameter windows, equipment details, control logic, scale-up data, raw material adaptability, abnormal condition handling, and long-accumulated operational know-how.

As long as the objects of protection can be reasonably distinguished, it is possible to establish multiple layers of rights around the same production line in infringement litigation.

In the “Melamine” series, centred on the relevant production technology, the invention patent case awarded RMB120 million, while the trade secret case awarded RMB98 million. In addressing trade secret compensation, the Supreme People’s Court did not simply deny trade secret damages merely because the same production system was patented; instead, it analysed the technical content protected by different rights, the periods of infringement, and whether any double-counting occurred among different claims.

In the Cathay Biotech series, centred on long-chain dicarboxylic acid technology, multiple disputes have arisen covering personnel and trade secret controversies, patent ownership, method patent infringement and trade secret infringement.

In the invention patent infringement case Zui Gao Fa Zhi Min Zhong No. 3178 (2023), concerning “long-chain dicarboxylic acid”, damages of RMB30 million were awarded, and the case was designated as a punitive damages case.

In the trade secret case of Zui Gao Fa Zhi Min Zhong No. 445 (2022), concerning “long-chain dicarboxylic acid”, the judgment was revised on appeal at the end of 2025 to award RMB28.8 million.

Punitive damages in chemical cases

Data released by the Supreme People’s Court in 2026 show that, in 2025 alone, the Intellectual Property Court applied punitive damages in 30 cases, totalling RMB1.13 billion. In high-value trade secret cases, multipliers of two, three, and even the statutory maximum of five have already appeared.

Chemical trade secret cases have distinct factual characteristics in proving “wilfulness”. Many do not involve competitors independently developing similar processes by chance; rather, they arise from employee mobility, the involvement of design institutes or prior business co-operation.

The 2026 judicial interpretation provides that if the defendant had a labour, co-operative, licensing or business relationship with the rights holder and had access to the IP at issue, it may serve as a significant factor in finding wilfulness.

Furthermore, continuing infringement after receiving an effective notice or circumventing liability by establishing affiliated companies may support a finding of wilfulness.

Therefore, when there are facts – such as employees carrying technology to a competitor, the competitor directly using the original design institute’s or original technical materials to construct a 10,000-ton-class production line, or continuing production after receiving a cease-and-desist letter, or after an effective judgment has been rendered – the litigation strategy should not only stop at proving “infringement” but should, from the very outset, also collect evidence demonstrating wilfulness and aggravating circumstances.

Outside-in evidence maximises compensation

CCPIT PATENT AND TRADEMARK LAW OFFICE
10/F, Ocean Plaza
158 Fuxingmennei Street
Beijing 100031, China
Tel: +86 10 6641 2345
Email: mail@ccpit-patent.com.cn
www.ccpit-patent.com.cn

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The ultimate guide to Indonesia’s latest patent regulation

The government of Indonesia has enacted Ministry of Law Regulation No.6 of 2026, introducing an updated procedural framework for patent applications before the Directorate General of Intellectual Property (DGIP).

The regulation implements the latest amendment to Indonesia’s patent law under Law No. 65 of 2024 while providing greater clarity on filing requirements, Patent Co-operation Treaty (PCT) national phase applications, accelerated examination and post-examination remedies.

Key Indonesian patent rule changes

For businesses, inventors and patent owners seeking protection in Indonesia, this article lists some of the most important changes.

Minimum information and documents for patent applications. Under article 2, a patent application must contain essential information concerning the applicant, inventor, attorney (if applicable), title of the invention, and relevant priority or PCT information.

The application must also be supported by a description, claims, an abstract and drawings where necessary, together with documents such as a power of attorney, assignment of rights where the applicant is not the inventor, micro-organism deposit certificate where applicable, and a statement regarding the origin of genetic resources and/or traditional knowledge where relevant.

The regulation also clarifies the structure of the patent specification including the field of the invention, background, brief summary, brief description of the drawings, detailed description and sequence listing where applicable.

English and Indonesian translations are both required. One important requirement concerns applications originally prepared in a foreign language other than English. Under article 7, where the patent description is written in a foreign language other than English, the applicant must provide both English and Indonesian translations within 30 days from the application date. There is no extension available for this deadline, making early translation preparation particularly important for foreign applicants.

PCT national phase entry: 31 months with possible extension. A PCT application designating Indonesia must generally enter the Indonesian national phase within 31 months from the relevant international filing date or earliest priority date.

Nevertheless, the regulation provides limited mechanisms for late entry, subject to applicable government fees. Depending on the circumstances, extensions of up to three months or 12 months may be available. Applications filed beyond the applicable extension period cannot be processed.

Therefore, this provision should be carefully considered when managing international patent portfolios involving Indonesia.

Priority applications may receive an additional four months. Article 28 provides another important safeguard.

A patent application claiming priority must normally be filed within 12 months from the priority date. However, an application that misses this deadline may still be submitted within an additional four-month period, subject to an additional government fee.

Nevertheless, the applicant must be able to provide the priority document within 16 months from the priority date.

Expedited publication and early substantive examination. The regulation expressly accommodates expedited publication. A request may be filed, subject to additional official fees, as early as three months from the filing date. However, this mechanism does not apply to patent applications filed with a priority claim.

For simple patents (utility models), the publication period is considerably shorter at 14 days. Applicants may also request early substantive examination before publication once all formality requirements have been completed.

The examiner is expected to issue a decision to reject or grant the patent within 12 months after the publication period ends. Where an opposition is filed during publication, an additional examination period may apply.

Expedited examination through PPH and regional co-operation. Another significant feature of the regulation is its express recognition of accelerated substantive examination through the Patent Prosecution Highway (PPH) and regional mechanisms such as Asean Patent Examination Co-operation (ASPEC).

Under a PPH arrangement, examination work performed by a partner patent office can be leveraged to accelerate examination of a corresponding Indonesian patent application.

Indonesia already has PPH co-operation with the Japan Patent Office (JPO) and the Korean Intellectual Property Office (KIPO). The DGIP describes its PPH arrangement with the JPO as allowing applicants in Indonesia to request accelerated substantive examination using examination results produced by the JPO. The DGIP-KIPO PPH pilot programme likewise provides accelerated examination based on examination work performed by the Korean office.

China Indonesia PPH speeds examination

China joins Indonesia’s expanding PPH network. A particularly important recent development is Indonesia’s co-operation with the China National Intellectual Property Administration (CNIPA). The DGIP and CNIPA signed an MOU on PPH co-operation, aimed at accelerating patent examination through the exchange and utilisation of examination results between the two offices.

Under the DGIP-CNIPA framework, applicants may request accelerated examination in Indonesia where, among other requirements, a corresponding CNIPA application contains at least one claim determined to be patentable or allowable. Notably, the corresponding Chinese patent does not necessarily have to be granted: a claim may qualify where the CNIPA has clearly identified it as patentable or allowable in its latest relevant office action.

The Indonesian claims must sufficiently correspond to the allowable CNIPA claims, meaning they have the same or similar scope or are narrower. Applicants generally need to provide CNIPA examination documents, allowable claims, cited references and a claim correspondence table.

Indonesian or English translations are acceptable for relevant CNIPA office actions and claims.

The co-operation provides a PCT-PPH route based on international work products produced by the CNIPA, including certain written opinions and international preliminary examination reports.

Indonesia expands PPH and re-examination

Indonesia is also working towards further expansion of its international patent examination co-operation. The DGIP and the Danish Patent and Trademark Office have discussed preparations for a PPH arrangement intended to accelerate patent examination and improve efficiency for innovators from both countries.

Indonesia has likewise indicated its commitment towards developing PPH co-operation with Russia’s intellectual property authority, Rospatent. This expanding network demonstrates Indonesia’s broader policy direction towards faster patent examination and greater international work-sharing.

Substantive re-examination: an important new avenue. One of the regulation’s most important procedural features is substantive re-examination, providing applicants with an additional avenue before proceeding to the Patent Board of Appeal.

Re-examination may be available in several situations, including:

1. 1. Rejection of a patent application;
   2. Correction of the description, claims and/or drawings after grant;
   3. Reconsideration concerning a decision to grant a patent;
   4. Withdrawal of an application; and
   5. Applications deemed withdrawn.

For most relevant circumstances, the request must be filed within nine months from the applicable notification or decision. A considerably shorter two-month deadline applies to requests concerning withdrawal of an application. Post-grant amendments through this mechanism cannot be used to expand the scope of patent protection.

Further legal remedies. Article 131 addresses further legal remedies after examination or re-examination. An appeal to the Patent Board of Appeal must generally be filed within nine months from the relevant substantive examination, early examination or re-examination decision. Where a party remains dissatisfied with the Patent Board of Appeal’s decision, further action may be brought before a commercial court within three months from that decision.

Indonesia reforms patents, boosts PPH

Ministry of Law Regulation No.6 of 2026 represents an important step towards a more structured, predictable and internationally connected patent system in Indonesia.

For foreign applicants in particular, the combination of clearer filing requirements, PCT and priority deadline mechanisms, early examination, re-examination and expanded PPH co-operation creates new opportunities. However, this requires careful procedural planning.

Indonesia’s PPH co-operation with Japan, South Korea and now China, together with preparations or commitments involving Denmark and Russia, signal a broader direction: Indonesia is increasingly integrating its patent examination system with major innovation economies.

For businesses managing international patent portfolios, these developments make it increasingly important to co-ordinate Indonesian patent prosecution with examination strategies in other jurisdictions. Should you need more information concerning patent protection in Indonesia, please contact the author at patent@affa.co.id.

For foreign applicants in particular, the combination of clearer filing requirements, PCT and priority deadline mechanisms, early examination, re-examination and expanded PPH co-operation creates new opportunities. However, this requires careful procedural planning.

AFFA INTELLECTUAL PROPERTY RIGHTS
15/F Graha Pratama Bui
Jl. MT. Haryono Kav. 15
Jakarta 12810, Indonesia
Tel: +62 21 8379 3812
Email: emirsyah.dinar@affa.co.id
www.affa.co.id

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Patent enforcement in Japan: Trends and strategies

Japan has traditionally been regarded by some international patent holders as a relatively conservative forum for patent enforcement. Recent statistics and judicial developments, however, suggest that this perception may no longer be accurate. The current litigation environment appears increasingly favourable to patent holders, while recent developments concerning standard essential patents (SEPs) may further enhance Japan’s attractiveness as a forum for patent enforcement.

According to statistics on patent infringement litigation compiled by the intellectual property divisions of the Tokyo District Court and the Osaka District Court for the period from 2016 to 2025, 23% of all cases concluded with a judgment granting the plaintiff’s claims, while another 21% were resolved by settlement containing provisions for injunctive or monetary relief (Statistics on Patent Infringement Litigation [Tokyo District Court and Osaka District Court, 2016-2025]). These figures indicate that 44% of cases were ultimately resolved with some forms of relief for patent holders. Monetary relief was included in about 72% of all settlements, either alone or together with injunctive relief.

The same statistics also indicate that courts upheld a defendant’s patent invalidity defence and found the patent invalid in only 21% of cases concluded by judgment.

A similar tendency can be observed in patent invalidation proceedings before the Japan Patent Office (JPO). In 2023, decisions finding a patent invalid accounted for only 13% of all patent invalidation cases, compared with about 28% in 2016 (Seiko Tamura, director-general of the Trial and Appeal Department at the JPO, “Recent Trends in Trials and Appeals” [25 October 2024]). The figures suggest that patents have become increasingly likely to withstand invalidity challenges.

These developments may be viewed positively by patent holders considering infringement actions in Japan. Conversely, defendants should formulate their strategies with the understanding that successfully challenging the validity of the asserted patent may not be straightforward.

Limitations of patent litigation process

One notable feature of Japanese civil litigation is the absence of both a jury system and a discovery process. Although limited procedures for disclosure of evidence are available, their scope is considerably narrower than discovery in the US. This generally allows litigation costs and duration to remain relatively limited compared with jurisdictions involving extensive discovery.

In a typical first-instance patent infringement action, the parties exchange several rounds of written briefs and documentary evidence (often two or three rounds by each side), followed by court-led settlement discussions and, where necessary, witness examinations. The first-instance proceedings are often concluded within about one-and-a-half to two years, although complex cases may take longer and may involve technical presentation sessions or expert witnesses.

Court submissions must be in Japanese; therefore, foreign-language material must be translated to the extent necessary. Interpretation may also be required for witness examinations or technical presentation sessions.

Court hearings generally involve relatively little substantive oral argument and focus instead on procedural matters and scheduling. Substantive arguments are primarily developed through written briefs and documentary evidence, although oral discussions take place during settlement discussions, witness examinations and technical presentation sessions.

First-instance patent infringement proceedings generally proceed in two stages. The court first considers liability, including infringement and invalidity defence. If infringement is found, the proceedings move to the damages stage. A defendant raising an invalidity defence will also often petition the JPO for a patent invalidation trial, resulting in parallel court and JPO proceedings. Appeals from both district court judgments and JPO decisions are heard by the Intellectual Property High Court in Tokyo.

Japanese patent law also contains several mechanisms designed to assist patent holders in proving damages and obtaining evidence. Article 102 of the Patent Act provides several methods for calculating presumed damages, reducing the patent holder’s burden of proving the amount of loss.

Although Japan does not have US-style discovery, the Patent Act also provides targeted evidence gathering mechanisms. These include: court orders for the production of documents necessary to prove infringement or calculate damages (article 105); expert appraisal procedures for the calculation of damages (article 105-2-11); and an inspection system under which a court-appointed expert may inspect documents, devices or other materials in the possession or control of a party (article 105-2).

These mechanisms can be particularly useful where evidence relevant to infringement or damages is primarily under the defendant’s control.

Japan grants first SEP injunction

In a landmark ruling, the Grand Panel of Japan’s IP High Court denied Samsung’s application for an injunction against an Apple subsidiary for SEP infringement, holding that the claim constituted an abuse of rights. Damages were limited to the fair, reasonable and non-discriminatory (FRAND) royalty rate (IP High Court Grand Panel, 16 May 2014).

The decision’s broad interpretation of abuse of rights and relatively low damages award discouraged SEP owners from litigating in Japan, prompting many to file in jurisdictions offering stronger injunctive relief and higher damages.

Against this backdrop, on 23 June 2025, the Tokyo District Court granted, for the first time in Japan, injunctive relief sought by an SEP owner. The case concerned Pantech’s bid to restrain imports, sales, etc., of Google’s Pixel 7 over long-term evolution (LTE) SEPs. The court found that Google had unreasonably refused to submit a FRAND settlement proposal and was unwilling to obtain a licence on FRAND terms.

Tokyo SEP guidelines speed settlements

Additionally, in January 2026, the Tokyo District Court formulated trial management guidelines specifically tailored to SEPs for both litigation and mediation. The guidelines have attracted considerable attention because they establish a framework that is particularly favourable to SEP owners and enables highly expeditious proceedings. Under these guidelines, the court will recommend settlement at the first hearing, followed by intensive court-facilitated settlement negotiations.

Most notably, the guidelines expressly state that, if the defendant does not voluntarily submit evidence necessary to calculate a global FRAND royalty rate, the court may, in subsequent litigation, find that the defendant is not willing to obtain a licence on FRAND terms. The course of settlement negotiations may also be used to assert and prove the defence of abuse of rights.

Accordingly, during settlement negotiations, the plaintiff should emphasise the need for the defendant to produce the necessary material and encourage the court to seek clarification from the defendant, building a factual record favourable to its position. Conversely, the defendant must ensure that its conduct during settlement is not used to its detriment in subsequent litigation.

Japan limits on global FRAND settlement

The guidelines further contemplate that a global FRAND royalty rate may be discussed in settlement. Under Japanese law, courts can determine licence royalty rates only for patents registered in Japan and cannot set a global FRAND royalty rate in a judgment.

In settlement, however, there would appear to be no impediment to facilitating agreement on global FRAND royalties. However, if the defendant is willing to settle the royalty rate for Japanese patents but refuses to negotiate a global licence royalty rate, whether the position may be treated adversely in a judgment raises a sensitive jurisdictional issue.

At the same time, the Tokyo District Court published substantially similar trial management guidelines for SEP judicial mediation. SEP mediation enables the parties to negotiate in non-public proceedings directed by a judge together with attorneys or patent attorneys with SEP expertise. If mediation is unsuccessful, however, the parties must commence fresh litigation before a different judge (Tokyo District Court: “Concerning the Operation of IP Mediation Procedures”). This may make the mediation route circuitous, and commencing litigation from the outset may therefore be more conducive to a swift resolution.

Japan increasingly attractive for SEP owners

Taken together, these developments indicate that the scope for SEP owners to select Japan as a forum has increased significantly. Proceedings under the SEP trial management guidelines may facilitate early agreement on royalty rates in light of the deterrent effect of a potential judgment.

CITY-YUWA PARTNERS
Marunouchi Mitsui Bldg., 2-2-2 Marunouchi
Chiyoda-ku, 100-0005 Tokyo, Japan
Tel: +81 3 6212 5500
Email: takuro.awazu@city-yuwa.com
www.city-yuwa.com

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Philippine practice guide to patent law 2026

In the Philippines, three major laws affect patents.

1. 1. Republic Act No.8293, the Intellectual Property Code (IP Code), which took effect in 1998, created the modernised Intellectual Property Office of the Philippines (IPOPHL), shifted the Philippines to a first-to-file system, and established clearer standards for patentability, such as novelty, inventive step and industrial applicability.
   2. Republic Act No.9502 (Cheaper Medicines Act of 2008), which amended the IP Code, allowed parallel importation of genuine, patented medicines from other countries where they are sold at a lower price by the patent owner, or with its consent, and tightened the rules on second medical use of drugs.
   3. Republic Act No.10055 (Philippine Technology Transfer Act of 2009), which is modelled after the US Bayh-Dole Act of 1980, promoting the commercialisation of government funded research, shifting IP ownership from the government to state universities and research institutions that create the inventions, and establishing technology licensing offices with clear guidelines on revenue sharing.

Philippine patents, designs and exclusions

Under the IP Code, patents are categorised into invention patents, utility models and industrial designs. Invention patents protect new technical solutions, involve an inventive step, and are industrially applicable for a statutory term of 20 years from the filing date. Utility models safeguard technical solutions that meet the same criteria as an invention patent, except for the requirement of an inventive step, and have a non-extendible term of seven years from the filing date.

Industrial designs protect the unique ornamental, aesthetic or three-dimensional features that give a product a special appearance for a term of five years, extendible up to a maximum of 15 years through renewals.

As a signatory to the Patent Cooperation Treaty, the Philippines allows foreign applications to enter the national phase within 30 months from the earliest priority date or international filing date of the international application, which is extendible by one additional month upon payment of an extension fee.

The IP Code excludes specific subject matter from patent protection such as: discoveries; scientific theories; mathematical methods; laws of nature; abstract ideas or theories; schemes; rules; methods of performing mental acts and playing games; or methods of doing business.

IPOPHL Circular introduces patent changes

The IPOPHL Memorandum Circular No.2022-016 (Revised Implementing Rules and Regulations) introduced several procedural changes, namely:

Payment of fees. Applicants must pay the filing fee, first publication fee, priority claim fee, fees for claims in excess of five, and fees for excess pages in full upon filing, otherwise the application will be deemed to fail.

Responding to office actions. Applicants are now restricted to only one request for an extension of time to file a response, capped at a maximum of two months.

Opposition to voluntary withdrawal. Voluntary withdrawals of patent, utility model and industrial design applications must now be under oath, and these withdrawals are published in the IPOPHL E-Gazette, where they can be openly opposed by any person who would be prejudiced by the withdrawal.

Observation by third parties. Within six months from the date of publication of the application, any person may present observations in writing, sworn under oath, concerning the patentability of the invention. The examiner shall request the applicant to comment, and the parties may request a conference, after which the examiner will consider all the submissions and decide accordingly.

Patent enforcement and cancellation options

Infringements. To enforce its rights against an infringer, a patent owner, or anyone possessing any right, title or interest in a patented invention, may file an administrative action with the Bureau of Legal Affairs (BLA) of the IPOPHL, or a civil action with a regional trial court designated as a special commercial court, with claims for damages. A criminal action may be filed only for repeat infringements.

Cancellation of patents. The BLA-IPOPHL has original jurisdiction over petitions for cancellation of patents or the claims in a patent, an inter partes action. There is no trial, and the parties exchange pleadings. Cancelling a patent or any claims may be raised as a defence or counterclaim in an infringement action.

Patent infringement damages and limitations

A patentee, or anyone with a right, title or interest in the patent, may bring an administrative action for IP violation or a civil action before regular courts to recover from the infringer actual damages, plus attorney fees and other litigation expenses. The court may award damages above the amount found as actual damage sustained, provided that such award does not exceed three times the amount of actual damage.

If the damage cannot be readily ascertained with reasonable certainty, the court may award a sum equivalent to a reasonable royalty. No damages can be recovered for acts of infringement committed more than four years before the filing of the action for infringement. Damages cannot be recovered for acts of infringement committed before the infringer had known, or had reasonable grounds to know, of the patent. Therefore, patent marking is desirable.

Trends in patent filing

Invention patent applications reached 4,486 filings in 2025, marking an 8.3% increase from 2024. Non-resident applicants accounted for most of these filings, with 3,479 submissions, while resident applications recorded a substantial 25.1% surge to total 1,007. By field, pharmaceuticals led with 794 applications (24.9%), followed by digital communication with 433 (13.6%) and biotechnology with 170 (5.3%).

Philippine patent infringement litigation trends

Despite increasing application numbers, patent infringement litigation remains relatively rare in the Philippines compared with trademark or copyright actions. However, in 2024, the Supreme Court of the Philippines issued its decision, in Tuna Processors Inc v Frescomar Corp (2024), where it emphasised that, as stated in section 75 of the IP Code, the extent of protection conferred by the patent shall only be determined by the claims.

Any unclaimed invention or information disclosed in the description, like the other contents of a patent application and everything that has been made available to the public anywhere in the world, forms part of prior art.

Courts evaluate infringement through two standard thresholds, known as literal infringement and the doctrine of equivalents. In the landmark case of Phillips Seafood Corporation v Tuna Processors Inc (2023), the all-elements test was established as the standard when applying the doctrine of equivalents in determining patent infringement. In the past, the courts used any of the following tests: the insubstantial difference test; triple identity test; and all-elements test.

IPOPHL advances AI patent guidelines

To keep pace with emerging global trends, the IPOPHL has identified AI as a key policy priority. In alignment with the current administration’s launch of the National Intelligence Strategy, which set the direction for AI regulation and adoption in the Philippines, the agency is actively deploying its own dedicated AI strategy. In 2025, the IPOPHL shared that, as part of this technological modernisation, the Bureau of Patents had begun exploring the integration of AI tools into its examination process.

Additionally, recognising that the use and reliance on AI has become more common in inventions, the IPOPHL issued the Artificial Intelligence-Related Inventions Examination Guidelines for Examiners, which aim to help both applicants and patent examiners understand how AI-related inventions, as a subset of information and communication technology (ICT) and computer implemented invention (CII), shall be assessed through the establishment of criteria for patentability that are unique.

The guidelines cover key points on AI-related inventions including inventorship of AI, the test of enablement, and sufficiency of disclosure for clear description of AI’s function or integration within the system and training data, clarity, and support of the claims. The guidelines also address patentable AI and non-patentable AI as subject matter, particularly in distinguishing technical solutions from abstract ideas.

A foundational principle established by the guidelines is that AI can neither be an applicant nor an inventor, maker, or designer under the IP Code. Philippine law requires that all parties named in a patent application possess civil personality and juridical capacity, which are legal traits inherent only to natural human beings or formally recognised corporate entities.

Because an AI model lacks the legal capacity to act, own property, transmit rights or participate in infringement litigation, it cannot hold an authorship stake. Although the IP Code and its regulations do not explicitly limit inventorship to natural persons, this requirement is implied by the fact that filing a patent application requires the inventor’s legal name, specifically a first name, middle initial and surname.

As an AI system cannot possess a recognised legal name under Philippine law, it is excluded from being named as an inventor. Instead, the person who inputs the prompts and instructions for the AI to generate the design or invention would still be considered the inventor and/or applicant.

HECHANOVA GROUP
GF & 4F, Salustiana D. Ty Tower
104 Paseo de Roxas Avenue
Legaspi Village, Makati City 1229, Philippines
Tel: +63 2 8812 6561
Tel: +63 2 8888 4293
Tel: +63 2 8813 6820
Email: mail@hechanova.com.ph
www. hechanova.com.ph

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