Monday, December 23, 2019

Davidson and Ng on IP Damages in China

Justin Davidson and Stanley Ka-Yuen Ng have published an article titled Aim Higher and Go Bigger:  Strategies for Claiming IP Infringement Damages in China, 41 EIPR 729 (2019).  Here is the abstract:
IP owners who litigate in China often complain about the low damages awarded by the courts, which then has limited deterrent effect on infringers and can erode the worthwhileness of enforcement steps. This article discusses the use of a number of strategies through which IP owners can reduce or shift the high evidential burden placed on them in China to prove infringement damages. Some cases from the Chinese court will be discussed to illustrate the application of these strategies.
The aforementioned strategies include:

(1) Asking the court for assistance in collecting evidence--for example, if there is a risk it will be destroyed, or there is some other "objective" reason the parties need assistance (I'm not sure what these latter would be, however).

(2)  Shifting the burden to the defendant, if the plaintiff first satisfies certain requirements.  For example, if the plaintiff makes a preliminary showing that the defendant profited from the infringement, the court may order the defendant to produce its accounts--and if the defendant refuses, the court may "find adversely against the defendant on the quantum of damage" (p.731).

The authors illustrate these principles with reference to three  patent cases.  Very interesting article!

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