Though i keep saying this, I will say it again: there are now a number of really good practice-oriented English language books on Chinese law. I can remember not so long ago when people would ask me to recommend books to help them better understand what they needed to know regarding China Law and my answer was always the same: James Zimmerman’s China Law Deskbook. Zimmerman’s book has since been updated and it is still considered to be the best, all-encompasing English language reference book on Chinese law, but now there are all sorts of excellent and more specialized books to supplement it.
Patent Litigation in China, by Douglas Clark, through the Oxford Press, is yet another such book. This is an excellent book. I actually was not planning to read the whole thing, but (and I know this makes me sound like a nerd), I ended up enjoying it so much that I did.
Neither I nor my firm do any patent work, believing that only lawyers who do it 100% of the time should do it at all. However, as counselors to mostly small and medium sized businesses that do business in and with China and internationally, we find ourselves serving as the nternational law gatekeepers for our clients. By this I mean that they look to us not just for our advice on the areas of law in which we actually practice, but for our assistance in spotting relevant legal issues and referring them to top-tier people even in those areas outside our ken.
Patents is probably the prime example of this.
Virtually every time we get a new client who is doing business in or with China we ask them about their intellectual property. Do you have any trademarks, patents or copyrights, we ask? What about trade secrets? What IP is it important that we protect from theft in China? If they have any patents or if what they are doing sounds as though a patent might make sense, we refer them out to the specialists. But for us even to know when and to whom a referral is warranted, we have to stay at least somewhat current on what goes on in the patent law world.
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 (which as I am always saying, is likely to be quite a bit better than most believe it is, particularly in the context of business litigation involving foreign companies).
This book is very much aimed at the legal practicioner, not the businessperson, but if you are a businessperson imbroiled in a China patent dispute, I recommend this book for you as well.
I really liked how Clark provides both a solid foundation of China’s relevant patent and patent litigation laws (including a large Appendix section that provides English language English translations of the “Patent Law, the Implementing Regulations of the Patent Law, Interpretations 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; [and] Several Provisions of the Supreme People’s Court on Issues Relating to Application of Law to Adjudication of Cases of Patent Disputes”), along with his own analysis based on real-life experiences.
The book’s own blurb accurately describes it as follows:
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.