Brian Love, Christian Helmers, and Markus Eberhadt have posted a paper on ssrn titled Patent Litigation in China: Protecting Rights or the Local Economy?, which is forthcoming in the Vanderbilt Journal of Entertainment and Technology Law. Here is a link to the paper, and here is the abstract:
Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article fills this gap in the literature by analyzing five years of data (2006-11) on patent suits litigated in courts with the fifty most active intellectual property (IP) dockets in China. Among other things, we find that Chinese patent suits are highly concentrated in a handful of major urban jurisdictions — not in smaller inland cities where protectionism is most often alleged to take place — and also have rates of success and appeal very similar to those of US patent suits. We also observe that foreign companies appear in Chinese patent suits most often as patent enforcers, not as accused infringers, and win their cases roughly as often as Chinese patentees. Finally, we find that patents litigated in China are generally more than five years old at the time of assertion and frequently have family members issued by foreign patent offices. Together, these findings contradict conventional wisdom that China’s patent system has been structured to benefit domestic industry at the expense of foreign firms.
The study is based on data collected by CIELA (China IP Litigation Analysis, a database created by the Rouse law firm) from which the authors were able to identify 471 IP suits "that included at least one claim for patent infringement"--meaning invention patent infringement, not utility model or design patent infringement--from 2006-11 (p.10). The authors' finding that concerns over bias in patent litigation involving Western firms cannot be substantiated is consistent with the empirical literature I cited in my book in 2013 at pp. 345-46. Among the authors' findings relevant to remedies are that "Seven of the top eight jurisdictions have an injunction grant rate of roughly 90 to 100 percent and a median damages award between 80,000 and 150,000 RMB" (p.14; see also p.16 tbl. 3). In addition, and relevant to the first point noted above, the authors report that "Successful foreign patentees received a median damages award of 100,000 RMB in suits against private Chinese firms, exactly the same amount that private Chinese patentees received when they sued private domestic parties. Interestingly, Chinese patentees received 20 percent less in suits against foreign companies and 60 percent more in suits against state monopolies. Similarly, foreign patentees received a permanent injunction in every case they won, while victorious domestic patentees were denied injunctions 5 to 10 percent of the time" (p.18). Finally, the authors note that "a surprisingly small number of asserted patents faced a parallel validity challenge" (p.22)-- another finding that apparently hasn't changed since 2013, when I noted the low rate of validity challenges and my inability to come up with a convincing reason for it (see my book pp. 361-62). Finally, the authors noted some limitations of their study (pp. 10, 25) but assert that "the data presented . . . is the best empirical information made available to date" (p.25). Interesting paper.
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