How Fair is Patent Litigation in China? - Evidence from the Beijing Courts

The China Quarterly, Volume 241, March 2020, pp. 247 - 261, DOI: https://doi.org/10.1017/S0305741019000754

16 Pages Posted: 16 Feb 2022

See all articles by Chenguo Zhang

Chenguo Zhang

Shanghai Jiao Tong University (SJTU) - KoGuan Law School

Jin Cao

Norges Bank - Research Department; Ludwig Maximilian University of Munich (LMU); CESifo (Center for Economic Studies and Ifo Institute)

Date Written: September 2, 2019

Abstract

By conducting field research and analysing judgments delivered in Beijing courts from 2004 to 2011, we find that the popular notion held by China’s trade partners of the inadequacy of intellectual property protection is only partly supported by the empirical evidence. The likelihood of winning lawsuits is higher for foreign than domestic plaintiffs and the extremely low damages ruled by Chinese courts are due to particular causes. Courts lack consistent methods to calculate incurred losses in intellectual property right (IPR) infringements and consequently routinely apply the statutory damages whose upper limit is restricted by legislation. Efforts by Chinese legislators to enhance compensation by lifting the upper limit of awardable statutory damages in the Third Amendment of Chinese Patent Law (2008) did not seem to have an effect on our sample. Chinese policymakers should instead focus on the cause of the issue by providing more implementable guidelines for courts to calculate losses. Courts need to develop applicable conventions for calculating damages, based on objective criteria of how much compensation ought to be payable, which is also the basis of calculating reasonable statutory damages. Thus, the new provision of the “right of information” on pirated goods proposed by the ongoing Fourth Amendment provides a significant weapon to combat counterfeiting.

Keywords: intellectual property protection; patent litigation; Beijing courts; inadequate enforcement; trade war; discrimination; damage

Suggested Citation

Zhang, Chenguo and Cao, Jin, How Fair is Patent Litigation in China? - Evidence from the Beijing Courts (September 2, 2019). The China Quarterly, Volume 241, March 2020, pp. 247 - 261, DOI: https://doi.org/10.1017/S0305741019000754, Available at SSRN: https://ssrn.com/abstract=3987744

Chenguo Zhang (Contact Author)

Shanghai Jiao Tong University (SJTU) - KoGuan Law School ( email )

800 Dongchuan Rd., Minhang District
Huashan Road 1954, Xuhui District
Shanghai, Shanghai 200240
China

Jin Cao

Norges Bank - Research Department ( email )

P.O. Box 1179
Oslo, N-0107
Norway

Ludwig Maximilian University of Munich (LMU) ( email )

Bankplassen 2, PB 1179 Sentrum
Oslo, NO-0107
Norway

CESifo (Center for Economic Studies and Ifo Institute) ( email )

Poschinger Str. 5
Munich, DE-81679
Germany

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