International Law

China IP Law. Straight From THE Judge's Mouth.

By Dan

By: Rebecca Carlson

NOTE: Rebecca is a new lawyer at the Harris & Moure law firm and this is her first post on this blog. Rebecca recently graduated from the University of Washington School of Law with a J.D. degree and an L.L.M. (advanced law degree) in East Asian Studies. Rebecca is fluent in Japanese and also speaks Mandarin, Korean and Swedish. 

I recently attended an informative presentation at the University of Washington School of Law by Justice Kong Xiangjun, entitled 'Intellectual Property Enforcement in China.' Justice Kong is the Chief Judge of the Intellectual Property Tribunal, Supreme People's Court (SPC) of China, and a widely published Ph.D. of Law. In his presentation, he provided a basic overview of China's court system and discussed practical issues and recent trends in intellectual property litigation in China.

Court System Overview 

Unlike the American model, which includes both federal and state court systems, China has a single court structure with four levels. The level in which to file a case depends on the type of case and the amount in controversy. Therefore, in all cases, including those involving IP, one of the important initial decisions is to determine the appropriate court in which to file suit. In this regard, IP cases can be heard in IP tribunals, such as the IP Tribunal of the SPC, where Justice Kong serves.

In areas that require highly specialized knowledge, such as IP, the court can decide to appoint a technical expert to sit on the panel to provide insight into the case. The expert has an equal vote in the ruling as the judges.

IP Law Overview

Chinese IP legislation was written to correspond with international IP treaties. Therefore, such treaties are a good reference point for Chinese IP legal research. In addition, Justice Kong pointed out that China judges are able to issue general interpretations of legislation when ruling, even if the interpretation is not at issue in a given case. These general interpretations have the same effect as legislation, and, therefore, must be taken into account in any legal argument.

Trends in China IP

Justice Kong emphasized two recent trends in China IP litigation. First, Chinese companies, in addition to foreign companies, are filing suit for IP enforcement in increasing numbers. Second, plaintiffs are requesting monetary damages, in addition to or in lieu of injunctive relief, with greater frequency. And indeed, courts are awarding ever higher amounts.  

Administrative v. Court Track 

When considering IP enforcement in China, one can file for an administrative hearing or in court. Justice Kong discussed the pros and cons of both options. In general, the administrative track is faster, but the factual analysis is less comprehensive and the application of law is less predictable. In turn, the court track is slower, but the factual analysis is very thorough—each level of court will make findings of both law and fact—and the rulings on the law are more predictible.

The highlight was an extensive Q&A session in which Justice Kong provided detailed responses to a variety of highly specific questions; some of the information is included above. After the presentation, I spoke with my former professor, Professor Dongsheng Zang, who facilitated Justice Kong's invitation to the UW. His goal is to encourage and build on presentations like this one to create an ongoing, in-depth dialogue on international and Chinese law at the University of Washington. I share in his enthusiasm.

Dan's Note: Seattle Trademark lawyer extraordinaire, Michael Atkins of the Seattle Trademark Lawyer blog attended the same presentation and he wrote on it as well, in a post entitled, "China's Chief Justice Discusses China IP Law at Microsoft Symposium." 

Full post as published by China Law Blog on February 16, 2011 (boomark / email).