The relationship between China and the United States has never been closer, and economic benefit is clearly experienced by both countries. China is now the largest trading partner of the United States, and the same can be said regarding the United States for China. As more and more U.S. companies look to enjoy a piece of the growing U.S.-China commercial relationship, U.S. patent holders share an increasing demand for protection and enforcement of their intellectual property rights in China.
The United States Patent and Trademark Office (USPTO) has recently analyzed problems in China’s patent enforcement policies experienced by U.S. companies and patent holders. Among these problems judicial impartiality is an obvious issue in patent enforcement. Chinese judges are known to display local protectionism in favor of local defendants. This is due, at least in part, to a lack of judicial independence from political interference. Along the same lines the USPTO has found that some judges are known to engage in ex parte communication with one side or the other, or even confer with the appellate court prior to issuing a ruling.
When a complaint is filed, Chinese courts have the authority to decide whether or not to accept the case by applying unclear and inconsistent standards. This becomes even more frustrating when one realizes that a decision refusing to accept a case is not appealable. These practices are all too common as there is not a published binding judicial interpretation clearly explaining what a plaintiff must submit for a patent infringement case to be accepted. It is, for all extensive purposes to the patent holder, an arbitrary decision made by the court that might as well be based on the weather. U.S. entities trying to enforce their patent rights may not even get their case into court, and if their case is denied, they have no other means of legal remedy. Courts also have a tendency to selectively publish their decisions. By exercising this selectiveness the court can avoid being bound by their previous decisions in future cases.
These are only a few examples of issues experienced by U.S. patent holders attempting to defend their rights in China. The USPTO has also found that patent holders have trouble with bringing in evidence, collecting damages, procuring injunctions, and even enforcement of court orders. Regardless of the potential frustration that may be experienced by U.S. patent holders, there does not seem to be substantial deterrence from U.S. companies’ dealings in China. The relationship between China and the U.S. continues to flourish, and with the continual economic growth comes more business opportunities. But as it stands, China’s patent enforcement policies remain an opportunity… for improvement.