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 counsel.
The pace of change struck me while I was reading through the articles in our new 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 will be.
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. As 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.