Patent litigation in China going through the roof: foreigners filing up to 40%
IAM just posted this graphic indicating the amazing activity at the specialized IP courts in Beijing, Shanghai, and Guangzhou have been. Interestingly, IAM states that within two months of launch, the court in Shanghai, 40% of cases had been filed by foreign plaintiffs, with US companies filing most of these. My firm maintains an excellent database of Chinese filings at Ciela.cn, and the data show that foreign plaintiffs are more successful than Chinese plaintiffs both in terms of win rate and damages amount.
In particular, over the past five years, win rates for foreign plaintiffs surpass Chinese plaintiffs 71% to 65%. Although foreign plaintiffs are likely to undertake more diligence than Chinese companies before filing against Chinese companies in China so that these cases are effectively pre-screened, there remains no evidence to suspect judicial bias towards Chinese companies.
Also, for Chinese vs. Chinese cases, there is a statutory 6-month time limit for filing to trial. For foreign-related cases, there is no time limit on proceedings, but the length has been cut by almost two-thirds for foreign plaintiffs and now approaches the length of time for Chinese parties.
Although there are still relatively few foreign vs. Chinese cases, and even fewer foreign vs. foreign cases, because of the many advantages of the Chinese enforcement system and of the ability to obtain an injunction against sales in and export from China, both types of cases are growing. And importantly, as long as foreign parties follow the rules and do the right thing (the subject of a coming post), foreign plaintiffs get a fair shake in cases in China.
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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.
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 Intellectual Property Practice at Spencer Fane LLP, where he manages patent litigation, licensing, and prosecution in China and the US.
The ideas and opinions at ChinaPatentBlog.com are my own as of the time of posting, have not been vetted with my firm or its clients, and do not necessarily represent the positions of the firm, its lawyers, or any of its clients. None of these posts is intended as legal advice and if you need a lawyer, you should hire one. Nothing in this blog creates an attorney-client relationship. If you make a comment on the post, the comment will become public and beyond your control to change or remove it.