From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 2 December 2015

Have the Chinese Specialist IP Courts made the grade?

The AmeriKat stalking for reports
on how China's Specialist IP Courts
have performed this year
A year ago, the AmeriKat's friend, Michael Lin (Marks & Clerk) brought news of the establishment of three Specialist IP Courts in Guangzhou, Beijing, and Shanghai, where a majority of Chinese IP cases are filed.   Now, Michael is back with a report court on how the courts have performed in their inaugural year: 
"With the Specialist IP Courts of Beijing, Shanghai and Guangdong Province being just 1 year old, it seems that they are learning to run and walk at the same time. Nonetheless, the results are already impressive. According to Cao Yin at the China Daily as of August 30 the three IP courts have heard 10,795 cases of which 39% have already been disposed of. This is obviously a great start by any measure. Efficiency Grade: A.
Even more encouraging, the courts are taking proactive steps to address the expected gaps relating to IP cases. For example, the Beijing IP Court is establishing an internal database of University IP experts to advise the court. Proactivity Grade: A+  
The Shanghai IP Court established an English website to improve transparency and disseminate information; reporting, for example, that the Shanghai IP Court has accepted the first suit (by Apple) requesting a declaration of non-infringement, and that the Shanghai Court accepted the lawsuit. The English website also provides a “Litigation Guide”.  However, this page is currently blank and obviously still under construction. Eventually, the court envisions that this webpage will allow those outside the jurisdiction to more easily track their cases as well as receive information from the court. Transparency Grade: A.  Execution Grade: B

So overall, I believe that the new specialist IP courts have had an amazing first year, but this merely sets the bar very high for the future. As the courts and their systems mature, I believe that the Chinese IP Courts will significantly shift Western views regarding the sophistication and enforcement of Chinese IP."
On the latter point, Michael recently commented on a guest post from Nick Buckland (Irwin Mitchell) reporting on this year's UK-China Intellectual Property Symposium. Michael commented:
"When considering Chinese litigation it is important to separate the fact from fiction.

Fiction: Foreigners can't win court cases in China.
Fact: 90% of IP litigation in China is Chinese v Chinese. However, when a foreign party is involved, the foreigner wins about 70% of the time. This has been consistent from year-to-year. Foreigners simply take the litigation more seriously and therefore prepare better. However, as noted in the article whether or not you can enforce your judgment is an issue.

Other items which should be considered when enforcing IP in China includes factors hinted at in the article: Can the Chinese party easily disappear? What is the scale of the infringement? Where are the infringing acts taking place? Can you gain venue in one of the larger cities or the specialized IP courts (Shanghai, Beijing or Shenzhen/Guangzhou)? Are you seeking monetary damages or just a stop to the infringing acts? etc.

In addition, there are ways to enforce IP via administrative, rather than judicial routes in China, and these need to be weighed vs. a court action. Administrative routes include: Local IP/AIC offices, and customs registration. As said in the article - definitely educate yourself about the territory and be aware of the difficulties (and local nuances), so that you can make an educated, strategic decision."
So does Michael's report card marry with other reader's experiences of the new Specialist IP Courts? Is it as rosy as Michael says and, if so, are perceptions of IP enforcement in China finally turning corner?  The IPKat is interested in hearing your views  - write to us at theipkat@gmail.com.

1 comment:

Anonymous said...

This post unfortunately just parrots the government's propaganda. No one who actually deals with the IP Courts would ever give them those grades... what we notice on the ground is that the IP Courts are understaffed and crushed under an avalanche of (administrative) cases, and that they now try to throw out as much cases as possible on any pretext (mostly formalities). Main problem with this is that this happens at the case filing stage, and if a case gets rejected at that stage, no official decision is issued, which effectively impedes any possibility of appealing, so no legal recourse possible...

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