Thursday, October 31, 2013

The Draft Fourth Amendment of the Chinese Patent Act Would Authorize Treble Damages for Willful Infringement

The draft fourth amendment of the Chinese Patent Act would, among other things, authorize treble damages for willful infringement.  Here is SIPO's translation of the affected provisions (hat tip to my former student Yijun Ge of Bird & Bird for forwarding this to me), and another from the Youqi law firm in Beijung.  There is also a discussion of the draft law in Professor Zhang Guangliang's recent article Thoughts on Effect of Patent Protection in China with Analysis of Some Important Issues Involved in Amendment to Chinese Patent Law, China Patents & Trademarks No. 3, 2013, pp. 100-03, as well in various online sources, including this one by Paolo Beconcini and this one from Covington & Burling.  In addition, this article by Stephen Yang discusses recent changes to China's patent marking regulations as well as the draft amendment.  As Mr. Yang notes, the new law also would allow the local SIPO offices--which currently can conduct administrative proceedings for claims for patent infringement but may not award damages (see my book p.343)--to award damages.  

Professor Zhang's article briefly discusses several other issues relating to enforcement as well, including discovery and damages.  In addition, it cites a talk by Mark Cohen, titled Future of IP Rights in China:  Copyright and Patent Right, given at the International Symposium on New Developments in IP Rights in China held at the University of California at Berkeley on October 4, 2012, which I would like to get a copy of.  According to Professor Zhang, Mr. Cohen's paper has some empirical data on "the average time for closing IP lawsuits" based on a sample of 12 cities.

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On a different issue of remedies under Chinese IP law, Ms. Ge and Christine Yiu  have authored a brief paper on Eli Lilly v. Huang, "the first interlocutory injunction order in a trade secret action based on Article 100 under the new PRC Civil Procedure Law."  Link is here.  I previously blogged about an article by Professor Zhang on the new civil procedure law, here.


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