On Oct. 28, 2010, the National People’s congress promulgated the fist statute on conflict rules, the Law of the People’s Republic of China on the Application of Law on Civil Relations Involving Foreign Interests, which shall come into force as of April 1, 2011.
The most significant development of this new statute, we thought, is it clarified intellectual property rights application rules which have not been explicitly stipulated in most of Chinese civil and commercial regulations. Under the law, the attribution and content of an intellectual property rights apply to the laws of the region where the protection is sought（“被请求保护地”）. The parties concerned may select by agreement the applicable laws on the assignment and licensed use of the intellectual property rights or relevant provisions on contract under the law shall apply if no party selects the applicable law. If the liabilities for intellectual property rights infringement apply to the laws of the region where the protection is sought, the parties concerned may also apply the law where the court is located （“法院地”）by agreement after the infringing act occurs.
However, where is the place of the protection is sought? In our view, this is the place where IP rights subsist. As we know, IP is not protected in a jurisdiction unless the corresponding IP rights subsist in that jurisdiction. For example, you cannot protect an invention in country X through a U.S. patent. The invention is protected in country X only if you also have a corresponding patent in country X (where the corresponding patent rights granted).