Overview

The rise of China's economy has led to a substantial increase in disputes involving intellectual property rights, including patents. Not only are foreign companies suing domestic companies and domestic companies suing foreign companies, but patent disputes between foreign companies are also being litigated in the Chinese courts. Patent Litigation in China, by Douglas Clark, provides U.S. and other non-Chinese practitioners with an overview of the patent litigation system in China. Strategic commentary is provided to enable those contemplating or involved in patent litigation in China to better comprehend the risks and challenges they face, as well as to ensure better decision-making by those responsible for bringing or defending patent actions. The book covers the tests for patentability grounds for invalidating patents before focusing on evidence gathering, litigation strategy and procedure, as well as considering defenses and remedies. The key differences between the Chinese, U.S. and other more mature patent systems are highlighted throughout the book.Appendices include Chinese to English translations of the Patent Law of the People's Republic of China; Implementing Regulations of the Patent Law; Interpretation by the Supreme People's Court on Several Issues regarding Legal Application in the Adjudication of Patent Infringement Cases; Several Provisions of the Supreme People's Court for the Application of Law to Pre-Trial Cessation of Infringement of Patent Right; Several Provisions of the Supreme People's Court on Issues Relating to Application of Law to Adjudication of Cases of Patent Disputes.

Full Product Details

Author:   Douglas Clark
Publisher:   Oxford University Press Inc
Imprint:   Oxford University Press Inc
Dimensions:   Width: 16.50cm , Height: 1.80cm , Length: 23.30cm
Weight:   0.476kg
ISBN:  

9780199730254

ISBN 10:   0199730253
Pages:   298
Publication Date:   03 August 2011
Audience:   Professional and scholarly ,  Professional & Vocational
Format:   Paperback
Publisher's Status:   Unknown
Availability:   Awaiting stock  

Table of Contents

"Contents 1. Introduction 1.1 Intellectual Property Rights in China 1.2 Scope of this book 1.3 History of Patent Law in China 1.4 Modern Patent Law 1.5 Patents in China 1.6 Weakness in the Chinese Patent System 2. Sources of Patent Law 2.1 Principal Legal provisions covering patent law 2.2 Other Relevant Legislation 2.3 Amendments to the Law 2.4 Re-numbering of Articles after amendment 2.5 Transitional provisions applying to most recent amendments 2.6 Case Law 2.7 Supreme Court Judicial Interpretations and Opinions 2.8 Interpretations and Opinions of lower courts 3. Introduction to China's Administrative and Judicial System 3.1 Introduction 3.2 Administrative System 3.3 Judicial System 3.4 State Intellectual Property Office 3.5 Patent Review and Adjudication Board 3.6 Structure of the Chinese Judicial system 3.7 Intellectual Property Chambers 3.8 Courts that handle patent cases 3.9 Appeals 3.10 The Judiciary 3.11. Adjudication Committees 4. Administrative Enforcement 4.1 Administrative Enforcement 4.2 Procedure for SIPO Administrative Actions 4.3 Mediation by SIPO 4.4 General Administration for Customs 5. Patents 5.1 Introduction 5.2 Types of Patents 5.3 Filing Requirements 5.4 Term of Protection 5.5 Grace Periods 5.6 Patent Examination Guidelines 5.7 Preliminary Examination 5.8 Substantive Examination 5.9 Rejection 5.10 Re-examination 5.11 Appeal of re-examination decisions to the Court 6. Grounds for Invalidating a Patent 6.1 Introduction 6.2 Statutory Grounds 6.3 Definition of Invention and Utility Model 6.4 Confidentiality Examination 6.5 Novelty 6.6 Inventiveness 6.7 Practical Applicability 6.8 Sufficiency of Disclosure 6.9 Claims must be supported by the Description 6.10 Amendments 6.11 Claims must contain the essential technical features 6.12 Divisional Applications must not go beyond scope of original application 6.13 Law, Morality, public interest 6.14 Breach of Law relating to Genetic Resources 6.15 Prohibited Inventions 6.16 Earlier Application 7. Patent Revocation Proceedings 7.1 Introduction 7.2 Application for Revocation 7.3 Invalidation Procedures 7.4 Grounds for Invalidation 7.5 Evidence 7.6 Oral hearing 7.7 Appeal of PRAB's Invalidation Decision 7.8 Effect of Final Invalidation Decision 7.9 Examples of Appellate Cases 8. Civil Litigation in China 8.1 Introduction 8.2 Summary of Civil Proceedings 8.3 Judging Panel 8.4 Filing Fees 8.5 The Complaint 8.6 Acceptance of Complaint 8.7 Service of Complaint 8.8 Defence 8.9 Proceedings in Absence of a Party 8.10 Mediation 8.11 Evidence Collection and Admissibility 8.12 Evidence Exchange 8.13 Trial 8.14 Judgment 8.15 Appeals 8.16 Effect of Appeal 8.17 New evidence on appeal 8.18 Review of decision by Supreme Court of Procuratorate 9. Preliminary and interlocutory Issues 9.1 Introduction 9.2 Powers of Attorney 9.3 Limitation Periods 9.4 Jurisdiction 9.5 Objection to jurisdiction 9.6 Search Reports for Utility Models and Design 9.7 Pre-trial or interim injunctions 9.8 Asset freezing order 9.9 Declaration of non-infringement 9.10 Stay of Infringement Proceedings 10. Evidence 10.1 The Importance of Evidence 10.2 Permitted Evidence 10.3 Best Evidence Rule 10.4 Notarised Evidence 10.5 Foreign Evidence: Notarisation and Legalisation 10.6 Foreign Language Evidence 10.7 Expert Evidence 10.8 Evidence Preservation Order 10.9 Order for party to produce evidence 10.10 Burden of proof does not shift if other party does not comply with an evidence request 10.11 Penalties for destroying evidence 10.12 Investigations by the parties 10.13 Inadmissibility of Illegally Obtained Evidence 10.14 Admissibility of pretext or trap purchases 11. Patent Infringement Litigation - Utility Models and Invention Patents 11.1 Introduction 11.2 Rights of patentees and Related Injured Parties to bring action 11.3 Acts of Infringement 11.4 Indirect Infringement 11.5 Joint Infringement 11.6 Reverse Burden of Proof When the Patent Relates to a Method Making a ""new product"" 11.7 Claim Interpretation 11.8 Doctrine of Equivalents 11.9 File Wrapper Estoppel 11.10 Interpretation of Claims to rectify mistakes 11.11 Proving Infringement 10. Defences 12.1 Types of Defence 12.2 Invalidity 12.3 Non-infringement 12.4 Prior Art Defence 12.5 Exhaustion of Rights 12.6 Prior Use defence 12.7 Temporary Entry into China 12.8 Research and Development 12.9 Clinical Trials 12.10 Innocence 12.11 Limitation Defence 12.12 Breach of Anti-Monopoly Law 12.13 Patent incorporated into Standards 13. Patent Infringement Litigation - Design Patents 13.1 Introduction 13.2 Stay of Infringement Proceedings 13.3 Grounds for Invalidating Design Patent 13.4 Definition of Design 13.5 Design Rights shall not belong to an existing design 13.6 Identical or not substantial different designs 13.7 Conflict with prior legal rights 13.8 Two dimensional designs that mainly serve as indicators 13.9 Design drawing should clearly identify the design 13.10 Amendments beyond the scope of the initial application 13.11 Contrary to law, or social morality or detrimental to the public interest 13.12 Identical Inventions-Creations 13.13 Infringement of Design Patents 13.14 Designs incorporated into other products 13.15 Defences 13.16 Prior Art Defence 13.17 Damages 14. Remedies 14.1 Remedies Available in China 14.2 Injunctions 14.3 Circumstances in which an injunction will not be granted 14.4 Reasonable for Pre-Grant Use 14.5 Damages for Post-Grant Infringement 14.6 Eliminating ill effects 14.7 Apology 14.8 Enforcement of Damages Awards 14.9 Enforcement of Injunctions 15. Tables 15.1 Patent Applications 15.2 Patent Infringement Litigation 16.3 Table of Court Fees Index"

Reviews

There is a need for a comprehensive and authoritative monograph on patent litigation in China. This book, being the first on the subject, fulfills exactly that need. Douglas Clark is one of the most qualified practitioners to write such a book. The book not only covers all the legal aspects of litigating patents in China, but also includes Clark's real-life perspective on China. This is a must-have desktop reference for anyone who has an interest in understanding and learning patent litigation in China. --Benjamin Bai Allen & Overy LLP, Shanghai Anyone working on China-related IPR issues realizes that there is no shortage of material on the subject. What sets this book apart is its comprehensive, yet concise and practical treatment of the PRC patent enforcement mechanisms. Douglas Clark's years of experience in China and his commercial flair are evident throughout. This is a resource that belongs on the shelf of every IP practitioner working in China. --Brenda J. Panichi Head, APAC Intellectual Property Syngenta Asia Pacific Pte. Ltd. Patent Litigation in China is good for knowing what is going on in the China patent world and it is great for knowing what to do in that world if you believe someone is infringing on your patent or if someone believes you are infringing on theirs. It is also an excellent book to read just for getting a sense of how China's courts operate...I highly recommend Patent Litigation in China. --Dan Harris, China Law Blog, www.chinalawblog.com This is an extremely useful guide for attorneys who want to proactively address the considerable challenges and risks associated with pursuing patent litigation in China. The coverage of the topic is both thorough and informative. --Stephen Jenei, Patent Baristas, www.patentbaristas.com

<br> There is a need for a comprehensive and authoritative monograph on patent litigation in China. This book, being the first on the subject, fulfills exactly that need. Douglas Clark is one of the most qualified practitioners to write such a book. The book not only covers all the legal aspects of litigating patents in China, but also includes Clark's real-life perspective on China. This is a must-have desktop reference for anyone who has an interest in understanding and learning patent litigation in China. <br>--Benjamin Bai <br>Allen & Overy LLP, Shanghai <br><p><br> Anyone working on China-related IPR issues realizes that there is no shortage of material on the subject. What sets this book apart is its comprehensive, yet concise and practical treatment of the PRC patent enforcement mechanisms. Douglas Clark's years of experience in China and his commercial flair are evident throughout. This is a resource that belongs on the shelf of every IP practitioner working in China. <br> --

Patent Litigation in China is good for knowing what is going on in the China patent world and it is great for knowing what to do in that world if you believe someone is infringing on your patent or if someone believes you are infringing on theirs. It is also an excellent book to read just for getting a sense of how China's courts operate. China Law Blog

Author Information

Douglas Clark is an intellectual property lawyer who has practiced in China for more than 15 years. Until the end of 2010 he was a partner with the international law firm of Hogan Lovells and head of the firm's mainland China intellectual property practice as well as co-head of its worldwide patents group. Since 2011 he has worked as a sole practitioner. He has handled over 100 patent cases and over 2,000 intellectual property cases in China.

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