That speed is necessary. China only introduced its first IP
law in 1985 so the learning curve has been incredibly steep.
But this is no consolation to foreign IP owners and their
of change struck me while I was reading through the articles in
China IP Focus (right), which went live on the website
this week. Not only is China in the process of reforming its
patent, trade mark and copyright laws, but its three procedural
laws – civil, criminal and administrative –
were all amended in 2011 and are only now coming into effect.
Then there are Supreme Court decisions which, although not
having the same effect as in a common law country, are the
closest thing to judicial certainty in China. Two cases last
year gave useful guidance on
embodiments in patents and
drafting errors in patents.
Of the three IP-specific laws,
trade marks has received the most attention recently
– because the changes are fresh and because issues
such as bad faith registration are relevant to such a broad
range of companies. A requirement of good faith has been
introduced into the law, but it is so broad-ranging that it is
almost impossible at this stage to tell what its full impact
On the patent side, in contrast, we can predict with some
certainty that there will be an increase in administrative
procedures in the coming years. The Patent Administration
Department now has the authority to handle patent
infringements, including calculating compensation and damages.
Zhang Xu and Eric Su of HFG say in their article, mediation
under the Department is far more likely now because it is
"quick, low risk, inexpensive and effective" as opposed to
"inefficient, high risk and expensive" court cases.
HFG’s article is a good starting point in the
China Focus, as it summarises most of the main reforms in 2012.
I recommend starting there, and then browsing through the
other 14 articles to get more detail on the law and
recommended practice. If there’s any consolation
for IP practitioners, it is hopefully that all the information
they need is at least in one place.