US, China To Hold Landmark Intellectual Property Adjudication Meeting

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The United States and China will hold early next week what is becoming the largest bilateral programme between their courts in the area of intellectual property adjudication. Set to gather more than a thousand participants, the discussions will largely revolve around patent litigation, according to a top US judge.

“This is the first time that the whole court (US Court of Appeals for the Federal Circuit) will go to China. The Chinese are bringing 251 judges in addition to the Supreme People’s Court judges to meet me and my colleagues,” Randall Rader, Chief Judge of the US Court of Appeals for the Federal Circuit, told Intellectual Property Watch.

Rader said some 100 to 150 participants from the United States will fly to China for the event.

Called the “United States-China IP Adjudication Conference,” the event will be held from 28-30 May in Renmin University in Beijing. The meeting is between the Supreme People’s Court-IP Division and the United States Court of Appeals for the Federal Circuit. It is hosted by the China Law Society and the Federal Circuit Bar Association.

According to information posted on the Federal Circuit Bar website, the topics for discussion between the two parties include issues concerning intellectual property adjudication, case management in patent litigation and enforcement.

Rader said the focus will be more on patent litigation. “Patents are the more difficult areas for judges to handle so this gives us more incentive to focus there and my court has a strong focus on patents. And also because patents set the most important rules governing innovation and the international marketplace.”

The main objective of this first-of-its kind meeting is to open communication lines between and among the judges from China and the United States. “This will help judges recognise the need to learn from each other and be aware of how the laws work from one jurisdiction to another to avoid international conflicts,” Rader said.

Particularly, the US is interested to learn from the Chinese how it could lower its litigation costs.

“Our litigation is just too expensive. Depending on the size of the case, it is not unusual in the States for a case to cost $5 million in litigation. In China, it can be done for thousands of dollars or much less,” he said.

In the US, much of the costs are spent on a practice called discovery, in which parties in a litigation can request and obtain from opposing parties and from third parties information, documents and testimony that they deem are relevant to the issues in the lawsuit.

“We spend millions of dollars in gathering and screening information, much of that is irrelevant to the basic lawsuit. So we need to scale back our discovery to make it more efficient,” Rader said.

In return, Rader said the US can share some of the US court’s best practices such as technical skills in patent litigation and writing clear and persuasive opinions.

“The Chinese have pretty good statutes, their rules are pretty clear. The challenge of course is to translate those rules into effective enforcement. But they are improving very rapidly,” Rader said.

“They are very anxious to have a very innovative economy and they recognise that IP is important to that so they are improving their enforcement and improving the way they handle cases.”

Last April, China issued a white paper on intellectual property protection by Chinese courts for 2011. The paper showed that adjudication was the top priority for last year. China highlighted in the paper the increase in IP cases being filed at courts and it also noted that it has already stepped up its enforcement efforts.

China said that for criminal cases involving IP infringement, its courts last year found guilty the defendants of 1,060 cases on counterfeit registered trademarks; the defendants of 863 cases on sale of products bearing counterfeit registered trademarks; the defendants of 370 cases on illegal manufacture and sale of counterfeit registered trademarks; the defendants of a case on patent infringement; the defendants of 594 cases on copyright infringement; the defendants of 30 cases on sale of infringing reproductions; and the defendants of 49 cases on trade secret violation.

“For intellectual property-related judicial matters, the people’s courts will continue to focus on adjudication, so as to fulfil its objective to “serve the overall interests; deliver justice for the people,” read the paper. The link to the white paper is here.

The judicial conference in China is part of the US Federal Circuit initiative to forge closer cooperation with international courts in the field of IP adjudication. A similar meeting was held in Japan six montsh ago, and Rader said South Korea is next in the schedule for next year, followed by Russia and Brazil.

“In terms of a formal program this initiative is recent but of course judges have been learning from each other, meeting each other in the past. The marketplace is already international, but our laws have failed to keep pace with the change in the market,” Rader said.

“We are still locked with this notion that each nation has its own separate group rules and of course to some extent it’s true but in terms of commercial extent that governs the marketplace, it is wise to have those rules more uniform so that international corporations can work seamlessly across borders,” he added.

Maricel Estavillo may be reached at maricelestavillo@gmail.com.

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