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My response to the unsupported claim that the Chinese government is slowing down IP cases due to the trade war

7/4/2019

3 Comments

 
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My friend, Mark Cohen, recently posted an article entitled "Where have all the cases gone… long time passing…" While I greatly respect Mark and value his insight into China, this particular post is disappointing. Mark, especially since he moved to academia, has pushed for thorough transparency, which is a good thing. Specifically, he emphasizes that patent litigation statistics should be taken with a grain of salt. Again, this is good advice, because there is no PACER, Lex Machina, much less a Lexis-Nexis or Westlaw to search or analyze cases. Patent cases from the Beijing IP Court can be obtained via IP House, which Mark used in one of his analyses here.

But in this post, Mark makes an alarming accusation based only on the statement "ha[d] heard from various [unnamed] sources."  That accusation is that the Chinese government (or its courts, sua sponte ) are slowing down and not accepting patent and trademark cases for political reasons. I will not opine on trademark cases as I do not file enough of these personally to support or challenge this allegation. But as for patent cases, including those filed by US NPEs, this is not my experience. Stating that "cases can be decided but only upon approval from the Supreme People’s Court" is obviously alarming, but without proof, this seems to be just more US politicizing of the trade war.

Mark Cohen is a smart guy who normally demands not just evidence, but thorough evidence. Mark and I have reasonably disagreed in the past on the amount of data needed to show just how well China's patent litigation system has evolved over the last five years or so.  We did not and still do not see eye to eye, but I always appreciated his dedication to sufficient public data.

Here, I just want to point out that this is an opinion
based solely on hearsay statements of unidentified sources. Further, as someone in the middle of many patent cases between foreign (including US) entities, I have not seen any political maneuvering. I have not experienced any slowdown or effect in the courts in which we file. Beijing has come to a standstill, but that is because of the number of backed up cases, not political action by the Chinese government or courts. In fact, we have had great successes and moved even SEP cases more quickly than I had thought we would.

Like Mark, I invite anyone who is willing to go on the record to provide such experiences to share their information. Until then, I worry that the United States is listening to people like Marco Rubio more than their own common sense and actual experiences. I will not apologize for doubting folks like Senator Rubio and other US bureaucrats and politicians who get paid to demonize China.​

Please email me any examples of the Chinese courts or government unfairly slowing or rejecting patent (or trademark) cases.



3 Comments
Mark Cohen link
7/5/2019 08:05:38 am

Erick just to respond to your comments -
(a) At a certain point when numerous unrelated sources - many of whom you also know personally and I believe respect - raise these types of issues they are concerning and need great transparency/data/support/corroboration or confrontation. My informants have been US counsel, Chinese counsel, in-house counsel (US, foreign and Chinese) and journalists.
(b) I will not publish these names on my blog; the point of the blog was to seek additional corroboration. That, along with other steps I undertook, suggested "probable case" to look further
(c) There is a long history of internal documents for dealing with sensitive foreign cases in China, and there are numerous court records that are never published. It is not inconceivable that there is an internal document of some kind that addresses some or all of these issues, although I estimate we will never see it.
(d) We do have as circumstantial proof the SPC no longer publishing national stats on foreign-related cases in the courts during this trade dispute, although some local courts (eg., Guangdong 2018/Shandong 2017) have continued publishing numbers of foreign-related cases in their annual reports.
(e) If I were the SPC I would probably ask courts to carefully consider the impact of their decisions on the trade war, stick to the facts, keep an appearance of impartiality etc. since good cases can reduce tensions. This might entail a measure of delay The Veeco and Fujian Jinhua/Micron civil cases and the decline in 2017 in criminal trade secret prosecutions are examples of developments that look like they could have used some oversight by the courts or procuratorate. This is not necessarily a bad thing, although it may entail some extra delay for foreign related cases.
(f) I have asked people to send me information on my blog. This was in addition to dozens of phone calls over the past six months. If you wanted to cooperate in this effort, I would always welcome assistance. I suspect the number of volunteers will be small and your blog may further diminish the pool.
(f) In the months of hearing this narrative, I had also reached out to several other sources.
f-1: I asked one major Chinese legal database for information on foreign related cases.
f-2: The possibility of case delay had also been communicated by me to several US government agencies to raise in trade discussions. I received no reply.
f-3: I have also discussed this with several foreign embassies in China. I have received nothing back so far, although my guess is that if there is a policy, it is US-centered.
f-4: A counter example: the new appellate IP court launched itself with a non-US patent case (Valeo Systemes d'Essuyage), which in itself may have been a kind of signal to Americans.
(g) Finally, If there are delays and no "smoking gun," there can certainly be an issue of causation. As you note, a clogged docket can be a reason for pervasive delays of which foreigners may not be aware. Moreover the civil procedure law authorizes extension of time for foreign-related cases. Chinese cases traditionally are adjudicated quite quickly. Considering the time pressures and possibility of politicization of cases at this point in time, it is also possible that these delays/additional supervision are in fact helpful to some foreign companies and that could be the point of any judicial intervention.
(h) US census data shows an increase in licensing by US companies to unrelated Chinese entities during the past two calendar years, which is a positive sign that could also be related to judicial practices in the politically fraught area of technology licensing, that was the subject of a now-suspended WTO dispute.
(i) You mentioned that you have had no problems with decisions from the courts. I have heard conflicting messages on SEP licensing-related infringement cases and disputes. Help me out here - were these cases brought by a US company against (major) Chinese companies or foreign companies, in which jurisdictions, were they within a reasonable time frame, and is there a published decision? . I am only looking for facts. Are there any other useful/corroborating facts? You didn't reveal the name of the cases in your blog. It is important to collect the information. 😊
(j) I can affirm that Marco Rubio or anybody that I believe is affiliated with Marco Rubio wasn't involved in my information collection to date. Frankly that is beyond the pale!
Wishing you well...

Reply
Expert Lancing link
8/26/2019 01:40:43 am

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Reply
Kevin Rice link
10/7/2022 09:46:33 am

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    Welcome to the China Patent Blog by Erick Robinson.  Erick Robinson's China Patent Blog discusses China's patent system and China's surprisingly effective procedures for enforcing patents.  China is leading the world in growth in many areas.  Patents are among them.  So come along with Erick Robinson while he provides a map to the complicated and mysterious world of patents and patent litigation in China.  

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    Erick Robinson is an experienced American trial lawyer and U.S. patent attorney formerly based in Beijing and now based in Texas. He is a Patent Litigation Partner and Co-Chair of the Patent Trial & Appeal Board Practice at Brown Rudnick LLP, where he manages patent litigation, licensing, and prosecution in China and the US.

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