Few days ago, I received the phone call from one of my long-term clients indicating that their sales department found out the counterfeited products using their design patent in the market again. Now, the counterfeited products have been sold nationwide through internet shops.
This is harsh news for me, because since the year of 2013, I have been working on protecting this client’s patent rights together with our colleagues. During almost 3 years, we went to two provinces to collect evidence, consulted face-to-face with the infringers, sent out our attorney letters, tried to shut off every path through which the counterfeited products were selling, and we even trialed for several court sessions to safeguard our client’s patent rights. Finally, at the end of 2015, we obtain the judgments in favor of us and won over satisfied compensation for our client. In a manner of speaking, all these were a series of successful legal actions although the processes are not easy. Thus, it is beyond my thinking that my long-term client is anxious about infringements again instead of merrily implementing their own patent rights.
As a matter of fact, this client’s experiences just reflect the current problems lying inside of Chinese IP right protection system. Right before the Two Sessions of 2016, the vice director of the State Intellectual Property Office, Mr. He Zhimin, had pointed out that along with the rapid development of E-commerce and new technology, the infringements on patent rights began to pose their novel gestures. In a meanwhile, new problems and conflicts emerged continuously within patent protection system. Innovative enterprises like our clients are facing up to many difficulties when they fight against the infringers. For example, it is very hard for the client to collect evidence on its own, and usually after a whole year time for going through legal proceedings, one paid a bundle but only got back little compensation. Even though everyone knows “no pay no gain”, the difference between the cost and compensation is too much for the right owner to bear. Because the patent administrative law enforcement system is out dated in comparison with the current development of patented products, we need more perfect legal basis to better protect patent rights. Otherwise, due to the hysteretic nature of administrative protection, even if we tried our best to defeat the infringers, we will still lose our market.
Fortunately, the authorities have been aware of the seriousness of the problems. From December 2, 2015 to January 1, 2016, the Legislative Affairs Office of the State Council published the Draft Amendment of Patent Law (For Review) for collecting public advices. On March 4, 2016, the Patent Administration Department of the State Intellectual Property Office also issued and published three drafts including The Guide for determination of Patent Infringements, the Guidelines for the rules of evidence in patent administrative law enforcement and the Guidelines for the administrative mediation of other patent disputes for public consultation. Up to now, advices and suggestions from public society have been well collected. These drafted prescriptions defined the concept and types of patent infringement, stipulate the methods for collecting evidence and also promote the initiatives of the administrative organs on law enforcement. Thus, to some extent, if the drafted provisions may be implemented, the above mentioned problems in protecting patent rights could be better solved.
We hope that the subsequent revisions of Patent Law and other relevant legal instruments can be completed as soon as possible. Therefore, there will be a solid and perfect legal basis for us to provide our legal services, and our clients may get real restitution after successfully fighting back their patent rights.