Jacob Schindler

China’s annual weeklong shutdown for Lunar New Year festivities is well underway, but before IAM’s Hong Kong bureau takes its break we pass along some insight from Judge Wu Xielin and reflect on what it might portend for Chinese patent litigation in the Year of the Goat.

The US-China Business Council recently invited Judge Wu, the newly minted head of the Shanghai IP Court, to deliver a briefing on the new body. Georgia Chiu of Hogan Lovells relayed his comments on the firm’s LimeGreen IP blog. The entire account of the discussion is worth reading, but it was the statistical breakdown that caught our eye:

According to Judge Wu, the Shanghai IP Court started accepting cases on 4 January 2015 and, by 4 February 2015, had already accepted 119 cases. The accepted cases include 107 first-instance cases and 12 appeal cases. More than 75% of the cases are infringement cases, and most of these are patent disputes. Thirty-six of the infringement cases involve foreign companies, and, interestingly, the foreign companies are the plaintiff in all of these cases. Judge Wu also reported that U.S. companies filed most of these cases (30 cases).

A back-of-the-envelope calculation tells me that the proportion of foreign plaintiffs in patent cases on Judge Wu’s docket could be something like 40%. Clearly, at least a few Western businesses are eager to test the new bench, which the judge reportedly touted as among the country’s most efficient and impartial. And there’s no doubt that a great many others will be observing the first round of judgments with interest. This blog previously examined win rates for foreign patent plaintiffs in China, which, on the whole, paint an encouraging picture. But beyond just wins and losses, observers will be noting the judges’ approaches to issues like evidence preservation and damages – long-time key areas of concern.

If filing figures are any indication, the new venues are generating a fair amount of enthusiasm. Shanghai’s was the last of three IP courts to launch, following those in Beijing and Guangzhou, which at last count had accepted 782 and 539 cases respectively. Plenty more stakeholders are watching from the sidelines. IAM spoke with the senior IP counsel for a Chinese internet company who said that her team is taking a cautious approach: “In the past six to nine months we haven’t filed lots of cases as rights owners in IP disputes. Where others are infringing, we’ll wait and see how the [specialist IP court] judges look at the cases in the first round of decisions.”

But for some, the prospect of a hearing before the country’s most experienced IP jurists is reason enough to litigate early and often in the new fora. A private practice lawyer recently told me he wasn’t taking a wait and see approach: if he had a strong case and wanted an expert to adjudicate it, he would take it to an IP court if at all possible. If the new bodies earn a plaintiff-friendly reputation over the next year, especially among foreigners, then we could see the emergence of an important global patent litigation venue.