What legal questions are still not codified in the Chinese patent law?

Since China is a Member of WTO, its patent law system has to meet the international standard set by the TRIPs Agreement. The Chinese intellectual property system underwent two substantial reviews from 2001 to 2008, and the current Patent Law took effect on October 2009.

From an international perspective, many basic concepts of Chinese patent law are similar to the German or European patent system. However, some legal questions are still not codified in the patent law, resulting in legal uncertainties.

Patent enforcement in China is essentially characterised by two factors. First, the country is very large, and the legal expertise of courts and the support by local authorities may not be adequate in rural regions. However, the major cities, in particular Beijing, Shanghai and Guangzhou, can be considered as a reliable forum for patent infringement actions.

Second, the Chinese procedural law imposes a number of requirements for patent infringement actions which foreign right holders may not be familiar to. In particular, any evidence used for patent infringement actions has to be certified by a Chinese notary, and all foreign documents have to be legalized.

These characteristics require a careful and timely planning of patent litigation actions in China. Nevertheless, patent litigation has to be considered an effective means to defeat piracy and technology theft. Given the efforts of the Chinese government to improve the overall IP system, the number of patent litigations is expected to increase very significantly in the next few years.

However, IP protection measures should not be limited to filling patent applications. It is rather advisable to implement an overall IP strategy covering legal, technical, administrative, and political aspects. Such a multi-dimensional approach can help to avoid a significant number of problems.