China: which way to go? The pros and cons of the two-track system
Otherwise, it can file a lawsuit with a court of justice.
These two options are commonly known as administrative route and judicial route, respectively. With the judicial route, remedies such as an injunction and damages are available to the infringed party, while with the administrative route the relevant government body can mediate on, but not directly grant, damages to the infringed party. However, injunctions can also be ordered.
This system has been established since April 1, 1985, when the Chinese patent law came into force. In recent years, however, there have been lively debates within the Chinese IP community on the pros and cons of the two routes. The focus of these discussions is whether the administrative route or judicial route should play a dominant role in patent enforcement.
Those standing on the administrative side assert that the administrative route has the advantages of promptness and low cost and therefore better meets the needs of many patent owners for efficient, economical enforcement, compared to the judicial route.
Those on the judicial side, however, believe that because a patent right is private, a dispute over patent infringement is civil in nature and should be resolved by courts of justice following codified legal procedure, instead of administrative bodies. This is the practice of most countries in the world with a patent system.
During the annual assembly of China’s National People’s Congress in early March 2016, Tao Kaiyuan, vice president of China’s Supreme People’s Court, made explicit remarks on supporting the idea of giving the dominant role to the judicial route rather than the administrative route. According to her, optimum results will be returned by using civil legal actions as major channels for patent protection, in order to overcome the problems existing in the current system. She even proposed that all disputes over patent infringement be handled through the judicial channel and never go to an administrative body.
Considering that Tao is the chief judge in the Supreme Court responsible for overseeing IP trials, it is believed that her remarks represent the mainstream views of China’s judicial circle.
