Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 13: PATENT INFRINGEMENT PROCEDURES AND REMEDIES
Patent litigation has taken root in China. China has emerged as the country with the largest number of patent litigation cases. The vast majority of these cases are contended between Chinese parties. Even if one takes into account that Chinese statistics count local subsidiaries of western companies, as well as Taiwanese and Hong Kong companies among local litigation parties, the large number demonstrates that Chinese companies embrace patent rightsas a strategic asset to be leveraged against competitors. This development is heavily fostered by Chinese authorities on different levels (Luginbuehl, Chapter 1). So far, the focus of western companies has been whether and how own patent rights can be enforced in China. The emphasis on the enforcement of patent rights has been closely linked to the danger of technology being copied or ‘pirated’ by Chinese companies. The future, however, is likely to increasingly shift the role of western companies to the defendant’s side. Chinese companies are generating vast numbers of patents. In particular, the moderate inventive step requirement for utility models extends the space for patent protection in China vis-à-vis other countries and provides rising local players with an edge over their internationally established competitors. In view of this trend, the defendant’s role deserves good coverage, too. Even after the second amendment to the Chinese Patent Act in 2001 the enforceability of Chinese patent rights was still put into doubt by many commentators. Meanwhile, such criticism has largely abated. China has made major strides in strengthening patent protection. The proclaimed strategy, as
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