The Enforcement Of IP Rights In China Is Progressing Well

Monday, December 1, 2008 - 01:00

The Editor interviews the Hon. Zhang Guangliang, former Acting Chief Intellectual Property Judge for the Beijing First Intermediate Court and Professor at China University of Political Science and Law, Beijing.

Editor: Judge Zhang, would you tell our readers something about your professional experience?

Zhang: I began to work as a court clerk after graduation from law school in 1994, and was promoted to be an intellectual property judge in 1997. In 2007, I decided to change my career. I resigned and began to teach IP law at China University of Political Science and Law. My research field covers IP law, competition law and contract law.

Editor: When you first came to the bench as an intellectual property judge, the law in China with respect to IP was very different from what it is today. Would you give us an overview of the IP landscape in China in the early days?

Zhang: When I began my career IP law was a little different from the current law. However, China had already established its complete intellectual property system when I just graduated from law school. It was a workable system under which patents, trademarks, copyrights and other intellectual properties could be protected, and unfair competition practices could be stopped. China amended its intellectual property laws prior to accession to the World Trade Organization in order to meet the minimum requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Editor: How has IP law evolved in China over your years of service on the bench?

Zhang: Just as I mentioned above, the development of IP law in China can be divided into two phases, with China's accession to the WTO as a delineating line. Generally speaking, the current IP law of China plays an important and positive role in promoting the development of science and technology, and the rights and interests of IP owners are protected effectively. The major IP statutes, such as the Chinese patent law, are implementing their third amendment.

Editor: And today? How are IP rights enforced in China?

Zhang: Intellectual property rights can be enforced by two channels. One is through the administrative agencies, the other is through the courts. This system of enforcement is usually called the "Dual-Track System." It is important to note that the powers of the administrative agencies and the courts are different in the enforcement of intellectual property rights. The administrative agencies of the local governments, including the Patent Office, the Copyright Office or the Office of Administration for Industry and Commerce, can order the infringers to stop the infringement, but they cannot award damages to the owner of the IP rights. The owner must bring a civil action for damages. Moreover, the decision of the administrative agencies will go through judicial review by the court, provided a party to that decision is not satisfied. The court can give the owner of the rights more comprehensive remedies, including preliminary injunction, property or evidence preservation, permanent injunction and damages. In addition, for very serious and intentional infringements - which constitute the crime of IP violation - criminal liability will be investigated.

Editor: How does a case proceed through the administrative system?

Zhang: Each agency has its own rules for dealing with an IP case. The owner of IP rights will come to the agency to complain of infringement and to submit relevant evidence. The agency thereupon investigates the matter, and the accused infringer will have an opportunity to be heard and to provide evidence. Following the completion of the proceedings, the agency will make its decision which, as I have indicated, can be appealed to a court where the administrative organ is located. The decision of the court of first instance can then be appealed to a higher court, and the decision of the latter is final.

Editor: And through the courts?

Zhang: Civil cases concerning IP rights, including patent infringement, copyright infringement, trademark infringement and unfair competition cases, are handled in accordance with the civil procedure law, while IP rights that involve criminal charges are handled pursuant to the criminal procedure law. As China has a uniform law, there is no difference between courts in the cities and those in more remote regions with respect to procedure.

Editor: Are the decisions of the courts on IP claims enforceable?

Zhang: Yes. The courts in China have taken strong measures under the newly amended civil procedure law to enforce their decisions in the IP area. There is a clear desire to enforce a decision on behalf of the owner of the IP rights, although there are a few cases where enforcement may not be satisfactory. This has more to do with the litigation strategy of the IP owners and the capability of their attorneys than it does with the courts.

Editor: How has the Chinese government responded to criticism of the country's IP protection system?

Zhang: In my view, the Chinese government has taken a very positive attitude toward criticism of Chinese IP protection. The Chinese government holds that protection of IP rights - irrespective of the nationality of the owner of those rights - conforms to its own national interests. The government attaches great importance to IP protection, and both the administrative organs and the judicial organs have taken measures to strengthen the protection of IP rights. Nevertheless, IP protection requires special expertise, and the owners of IP rights, and their attorneys, must have an understanding of the Chinese IP protection system.

Editor: How do the U.S. and Chinese governments work together to enhance IP protection?

Zhang: Both the U.S. and China are influential members of the WTO, and the two countries have mutual interests in enhancing IP protection. It is important to note that there are differences between the IP systems of the two countries and that IP protection issues, just like other international issues, need to be solved through cooperation and negotiation.