Foreign firms have long complained that enforcing their intellectual
property rights in China is difficult due to local judicial
protectionism, challenges in obtaining evidence, small damage awards,
and a perceived bias against foreign firms. . . .
Local Judicial Protectionism
One major complaint levied against China’s IPR regime is that cases
brought to an intermediate court (at the municipal level) will suffer
from local judicial protectionism. Long and Wang found in their 2015
study that in IP cases between Chinese firms, plaintiffs litigating in
their hometown are significantly more likely to win. . . .
Challenges in Obtaining Evidence
In order to effectively litigate intellectual property cases, IP
holders need evidence. In the United States, parties usually obtain
information through the pre-trial procedure of discovery, which
includes interrogatories and depositions, as well as requests for
admissions and access to documents, real property, or other relevant
items for review or testing. In China, on the other hand, no formal
process of discovery exists, and there is no requirement that IP
infringers provide evidence, such as sales or accounting documents,
that could be used to show infringement. In fact, the burden to
provide evidence is on the plaintiff. Many companies have claimed that
this makes it impossible to conduct fair IP litigation in China. . . .
Small Damage Awards
. . . . Many businesses have complained that pursuing intellectual
property cases in Chinese courts is not worthwhile because the damages
awarded are too small. Some estimates indicate that patent holders
currently receive around 36 percent of the damages they seek in
litigation, with damage awards averaging around just 80,000 RMB
($12,400) and legal fees between 10,000 RMB and 30,000 RMB ($1,550 to
$4,650). . . .
Bias Against Foreign Firms
Finally, a string of high-profile losses to relatively unknown Chinese
companies in patent infringement cases by companies like Apple,
Samsung, Sony, and Dell have convinced many observers that it is
impossible for foreign firms to get a fair shake in China’s courts. .
The material quoted above, from this source, described the historical complaints about Chinese patent law, and then goes on to suggest that many of these concerns have lessened due to legal and policy changes in the last few years.
Generally speaking, in Europe, the patent enforcement process is similar to that in the U.S.
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