Friday, February 15, 2019

News on Patent Remedies in China

1.  Nie Huiquan has published an article titled New Development in Chinese Practice on Calculation of Patent Damages Awards in the Nov.-Dec. 2018 issue of China IP Magazine (available here, but behind a paywall).  The author discusses the general framework for awarding patent damages in China; summarizes some descriptive statistics on damages awards; and discusses three cases, Watchdata v. Hengbao (for previous discussion on this blog, see here (guest post by Jill Ge), here and here); Siemens v. "SIEMIVES", a trademark case "which can also be used to guide the trial of patent infringement cases," in which the court awarded RMB 1 million as statutory damages; and the Quangzhou court's decision in Huawei v. Samsung (very briefly discussed on this blog here).  The author notes, among other matters, an increased willingness on the part of the Chinese courts to include attorneys' fees as compensable costs.

2.  Mark Cohen published a post on the China IPR Blog titled On Avoiding "Rounding Up the Usual Suspects" in the Patent Law Amendments . . ."  Professor Cohen notes that the recently released draft amendments to China's patent law "would enhance patent administrative enforcement" and "would also provide for punitive damages upon a judicial finding of willful patent infringement (Art. 72), with a maximum of 5x damages" (for previous mention, see here).  Mr. Cohen argues that "[u]sing remedies that are not at the core of a healthy IP system based on private rights (administrative remedies/punitive damages) are not a substitute for predictable, compensatory private remedies," a sentiment with which I fully agree. 

3.  Expressing somewhat analogous concerns, albeit in the context of a copyright matter, Tian Lu published a post on IP Kat titled The CNY 260 million fine on QVOD is final!  The post discusses the recent affirmance of a decision of the Market Supervision Administration of Shenzhen Municipality imposing a fine of RMB 260.148 million (about US $39 million) against QVOD, "a peer-to-peer video streaming and sharing platform."  And in a not-entirely-dissimilar vein, albeit involving a different country, is Hans Eriksson's post on IPKat titled Swedish Supreme Court finds hypothetical licence fee too hypothetical, involving a fine leveled against a streaming site.  All of which is beginning to make me think I ought to resume writing about copyright damages one of these days . . .

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