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Enforcing and Implementing Patent Protections in China:

Chinese cultures and legal systems are very different from those in other counties.  The rule of law has never been the dominant philosophy in China; instead, the Chinese relies mostly on mediation or other sources outside of the court system to resolve their disputes.  Although the Chinese government has engaged in significant efforts to enact IP protection, the lack of effective enforcement of these laws in China has been a long-standing problem.

The first essential issue for the lack of enforcement of IP laws is the education and cultural issue.  For centuries, Chinese believe that inventions and creative works belong to society, and should be freely shared or owned by the Chinese Government.  Therefore, as traditional Chinese culture does not consider IP rights as private rights, the entire concept of IP protection is quite new.  Many Chinese and business entities are not aware of their IP rights and the need to seek protection; and many infringers do not know that their activities infringe other’s private rights.

Second, since IP rights and protections are a new concept in the Chinese legal system, most Chinese lawyers and judges have no experience in this field.  Currently, China is short of lawyers specialized in patent and other IP law, and the judges who are dealing with patent and other IP disputes are mostly inexperienced law school graduates.  There are no clear judicial tests to determine infringement, and disparate treatment and inconsistent results would be obtained from different courts.

 

Third, the Chinese local government’s lack incentives to enforce the patent and other IP laws in China.  Since China is engaged in a decentralizing economic reform, the local governments have been provided wide power and great discretion in dealing with problems in their own territories.  They do not have to be consistent with the central government on all issues.  Although the central government has expended great efforts to protect IP rights and sees their benefits for the future, local governments do not want to enforce IP law because it provides little imminent benefit to the local economy.  Instead, it often imposes a harsh consequence, causing local state-owned enterprises to go bankruptcy or experience financial trouble, thus, diminishing the local governments’ revenue.

Furthermore, China is experiencing widespread corruption.  Such corruption causes an inconsistent interpretation of the regulations and rules between government agencies.  As a result, many Chinese laws and regulations, including patent and other IP laws are futile.

Moreover, as discussed above, there are two enforcement mechanisms in protecting patent and other IP rights: administrative adjudication and judicial civil litigation or criminal prosecution.  Under administrative adjudication, a government agency may mediate the disputes between parties in relation to the unauthorized use.  The outcomes of the dispute may totally rely on government officials’ subjective understanding of the dispute and interpretation of the rules and regulations.  If the mediation fails, the injured party may seek judicial relief.  However, no Regulation indicates or specifies what kind of relief that the injured party can seek in the People’s Court.

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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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