My response to the unsupported claim that the Chinese government is slowing down IP cases due to the trade war
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.
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 based in Beijing. He is a Partner at Dunlap, Bennett & Ludwig PLLC, where he manages patent litigation, licensing, and prosecution throughout China.
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.