Overcoming intellectual property phobia in China

By Kirsty Barnes

- Last updated on GMT

Related tags Law China

China is a big market with a lot of potential but many pharma
industry firms still avoid doing business in the country because of
fears that their intellectual property (IP) cannot be protected.

"This view is mistaken,"​ said Ian Harvey, chairman of the Intellectual Property Institute, London at a recent conference his organisation held in London titled: "The Chinese Opportunity: Successful Business Development in China."

Attendees heard that a website, >http://www.chinaiprlaw.com​, in English providing legal system and IP law advice for foreign companies wanting to operate in China is now up and running thanks to Chief Justice Jiang Zhipei, commissioner of the Trial Committee and Chief Justice of the Third Civil Trial Chamber (Intellectual Property Right Trial Chamber) of the Supreme People's Court of China.

Chief Justice Zhipei also provides an email address where foreign firms can submit more specific questions.

Speaking at the conference via satellite link, Chief Justice Zhipei stressed that the first thing that companies entering China must do is register their IP and take advantage of the anti-competition laws that China has in place.

If IP infringements begin to occur in the marketplace, companies need to be very diligent in immediately collecting as much solid evidence as possible, Chief Justice Zhipei warned.

"The judicial system is different in China and if you are the owner of a patent and it has been infringed, the onus is on you to make sure your documenting evidence is correctly gathered and notarised according to regulations so that it is recognised by the Chinese courts,"​ he said.

Failure to slip up procedurally can lead to a claim being thrown out of court.

When a company goes to court over an IP issue in China, there are three routes they may take; the administrative, criminal or civil procedural routes.

"Look at your case to see which avenue is the best for you,"​ said Chief Justice Zhipei.

"If there are huge damages involved you may want to go directly to court with a civil procedure for a judge to decide on the case and at the same time generate a large amount of publicity,"​ he said.

"In China, publicity of court proceedings against a patent infringer is a huge deterrent for other infringers."

"If you have a good amount of sufficient evidence this is probably the best route to take, he added."

On the other hand, if the evidence is at all lacking or if the case involves a very serious infringement, Chief Justice Zhipei suggested that companies may instead wish to pursue the criminal route.

In his parting words he urged firms to mount legal challenges when they have evidence that their business is being damaged by criminal activity.

"Ninety per cent of infringement cases launched by foreign firms in China are successful, however very few are embarked upon as it is perceived as being too hard."

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