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Hongyi Jiang of LexField Law Offices in Beijing provides a guide to patent litigation in China, focusing on the process, timing and award of damages

Chinese companies are filing record number of IP applications and enforcing their rights through an increasingly sophisticated legal system. Gary Zhang, Xiang An, Jinhua Lu and Guangliang Zhang of China Sinda explain why 2009 was a watershed year for IP in the country

It has been a mixed 12 months for IP owners in China. Progress has been made in a number of areas such as the successful introduction of the Patent Law amendments and implementing regulations, but some moves by the government on national standards and indigenous innovation have raised fears that foreign IP owners will face discrimination.

In late 2009, Deputy Prime Minister Hoang Trung Hai issued a stern announcement (Announcement 323) exhorting relevant agencies to step up the fight against counterfeit and smuggled goods in Vietnam. Announcement 323 acknowledges the improvements in IP enforcement in recent years, but notes that the results do not meet requirements and that, in the future, anti-counterfeiting and anti-smuggling actions by the authorities must be strengthened to protect the health of the people and prevent a negative influence on the investment environment. In particular, Announcement 323 notes that more resources and reforms are needed to shore up weaknesses in preventing smuggling and inferior goods from entering through the border points into Vietnam.

The conduct of a raid by authority of a judicial search warrant, preceding a criminal action for trade mark infringement or unfair competition is perceived by many trade mark owners as one of the more effective means of combating counterfeiting, because it allows for immediate seizure of the infringing goods and there is the threat of possible imprisonment of the infringers. Therefore, a raid yielding negative results is disappointing not only to the IP owners but also to the lawyers and enforcement agencies involved. It also emboldens the alleged infringers to file a suit for damages against the search warrant applicants. This was the situation in the case of Arthur Del Rosario and Alexander Del Rosario vs Hellenor Donato, Jr. and Rafael V. Gonzaga (docketed under GR no 180595), decided by the Supreme Court on March 5 2010.

Section 6 of the Thai Trade Mark Act stipulates that a mark must be distinctive in order to be registrable. Section 7 (2) specifies that the word or clause employed in a mark must not directly refer to the character or quality of the goods. When examining a mark's potential descriptiveness, registrars usually use standard print dictionaries as their main reference. With recent technological advances, however, registrars have also begun to use internet sources to determine the meaning of some trade marks. Of course, the reliability of these online dictionaries may be called into question.

In recent years the Japanese IP High Court and the Board of Patent Appeals (BPA) at the Japan Patent Office have rejected many patent applications and also nullified many granted patents by simply using an obvious-to-try reasoning to prove obviousness. This has received heavy criticism from the industry and the bar groups in Japan.

A good portion of the practice of most IP law firms is in litigating against parties that infringe on US patents. But it is important to understand that infringement may occur in three different forms: direct infringement, inducement of infringement and contributory infringement.

The Indonesian government's IP enforcement team, known locally as TimNas, has begun the process of consulting with stakeholders about its IP enforcement strategy for 2010.

The German Federal Court of Justice (FCJ) has repeatedly emphasised in a series of decisions (Seitenspiegel, 2005; Kettenradanordnung, 2007) that the interpretation of a patent claim is a question of law and thus may not be committed to the court expert, but is the original duty of the court.