IP: 3 litigation strategies for enforcing IP rights in China

Litigants should study judicial guidelines, establish government and court contacts, and seek evidence preservation orders

The court system in China is unlike the court system in the United States—as different as F. Scott Fitzgerald thought the “very rich” were “from you and me.” It is possible to protect intellectual property rights in China by taking infringers to court; but as is true everywhere, winning is unlikely if you don’t know the rules of the game. To illustrate the point, here are three China-centric litigation strategies.

1. China is a civil law country and therefore is unlike the U.S., which has a common law legal system based primarily upon previous judicial opinions interpreting legislation. Judges in China make rulings based only on the civil codes and statutes. Chinese judges make their decisions autonomously by requesting and challenging evidence, questioning witnesses, receiving briefs and hearing arguments from legal counsel, and even consulting their own selected experts. The judges in China do not respond to caselaw-based precedent. But recently, the Chinese Supreme People’s Court (SPC) issued judicial guidelines for IP infringement adjudication illustrated with hypothetical cases. These guidelines do not form a part of the law as they would under a common law system; but, coming from the SPC, they have an authoritative aura. Drawing the local court’s attention to the similarity between one’s case in the local court and such illustrative cases should have a persuasive effect on the ruling of the local court.

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Thomas Ross

Thomas Ross is a litigation partner at Marshall Gerstein & Borun LLP in Chicago, and a Fellow of the Litigation Counsel of America....

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