In China's patent system, there are two available routes for
enforcing a patent. This is the so-called two-track system in which
a patent owner, when encountering infringement of its patent, can
opt to file a complaint with a local government body responsible
for patent administration matters in the area (usually named a
local intellectual property office). Otherwise, it can file a
lawsuit with a court of justice.
These two options are commonly known as administrative route and
judicial route, respectively. With the judicial route, remedies
such as an injunction and damages are available to the infringed
party, while with the administrative route the relevant government
body can mediate on, but not directly grant, damages to the
infringed party. However, injunctions can also be ordered.
This system has been established since April 1, 1985, when the
Chinese patent law came into force. In recent years, however, there
have been lively debates within the Chinese IP community on the
pros and cons of the two routes. The focus of these discussions is
whether the administrative route or judicial route should play a
dominant role in patent enforcement.
Those standing on the administrative side assert that the
administrative route has the advantages of promptness and low cost
and therefore better meets the needs of many patent owners for
efficient, economical enforcement, compared to the judicial
Those on the judicial side, however, believe that because a
patent right is private, a dispute over patent infringement is
civil in nature and should be resolved by courts of justice
following codified legal procedure, instead of administrative
bodies. This is the practice of most countries in the world with a
During the annual assembly of China's National People's
Congress in early March 2016, Tao Kaiyuan, vice president of
China's Supreme People's Court, made explicit remarks on
supporting the idea of giving the dominant role to the judicial
route rather than the administrative route. According to her,
optimum results will be returned by using civil legal actions as
major channels for patent protection, in order to overcome the
problems existing in the current system. She even proposed that all
disputes over patent infringement be handled through the judicial
channel and never go to an administrative body.
Considering that Tao is the chief judge in the Supreme Court
responsible for overseeing IP trials, it is believed that her
remarks represent the mainstream views of China's judicial
Patent law changes
The background of Tao's remarks is that China is in the
process of amending its patent law for the fourth time and a draft
amendment has been prepared by the State Intellectual Property
Office (SIPO), China's top patent administration body, and the
State Council has put the draft on its official website for
In its draft amendment, SIPO has proposed to strengthen the
administrative route by, for example, empowering the local
government that is handling infringement cases to actively collect
evidence of infringement. This proposal, according to the SIPO, is
in response to complaints it has received from industries about
difficulties encountered when trying to enforce patents through
courts, such as problems with collecting evidence, lengthy legal
proceedings and high costs. These difficulties could be alleviated
if patent owners choose the administrative route.
The draft has received criticism from IP practitioners as well
as judges of the courts. They believe that, after nearly 30 years
of practice, it is now time to get away from the administrative
route, which violates basic legal principles. However, SIPO is
obviously favouring the other route.
The draft amendment has yet to be submitted to the Standing
Committee of the National People's Congress (SCNPC),
China's top legislative body, for its review, before being
passed into formal law. It is expected that further debate will go
on during the SCNPC's review process, which is expected to
happen in a year or two. For now, it is hard to predict who will
win the debate.
Jiancheng Jiang is managing partner at Peksung Intellectual
Property. He can be contacted at:email@example.com
This article first appeared in World Intellectual Property
Published by Newton Media Ltd.
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