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.  
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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.

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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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