After Chinese accession to the WTO, the annual national courts in civil intellectual property cases in 15000 pieces, wherein the foreign-related cases accounted for 3% - 5%. Although the overall number of cases increased year by year, but the year in court lawsuit of intellectual property rights in the proportion has been changed, in intellectual property litigation is more than 95% Chinese enterprises.

At the same time, the number of foreign invested enterprises in China has been steadily. According to the Xinhua News Agency reported, as of 2006 9 at the end of the month, China FDI totaled more than $665000000000 of investment in China, nearly 200 countries and regions, the global top 500 enterprises have about 480 to invest in china. Chinese has for 15 consecutive years to become the largest foreign investment in developing countries. Only in 2007 1-2 months, foreign-invested enterprises set up the new approval is a 5716 home.

According to the Supreme People's Court of intellectual property court judge Jiang Zhipei introduced, most involved in intellectual property litigation in China's Multi-National Corporation and foreign companies have won the lawsuit, in favor of the ratio of 70% - 80%, some foreign companies losing as infringement or joint tort party being sued, if put aside these situation, success ratio of foreign active adults in China will be more.

Despite the success rate is very high, but foreign or very reluctant in Chinese participate in litigation, to solve a problem or no action. In contrast, foreign complaints about intellectual property infringement is rising. So what are the reasons, makes the foreign are not willing to participate in the litigation in China? The legal environment in the existing China, foreign to whether should make better use of proceedings to protect their legitimate rights and interests? This period special plan interviewed some foreign enterprise legal adviser and Intellectual Property Specialist, intellectual property lawyers, judges and other intellectual property rights. Hope to provide suggestions and methods involved in litigation in China for foreign, in order to help foreign participation in the formulation of strategies of litigation in china.

Choice of administrative law enforcement, or civil litigation?

According to some unidentified foreign enterprises related responsible person said, there are several major foreign litigation in China encountered problems, including litigation time is too long, evidence of the difficulties, the defendant in the preservation of the proceedings before the transfer of property, the amount of compensation is small, judgment difficult decision execution. At the same time, they also list out some details, such as: Chinese court requires that all documents submitted as evidence shall be notarized; purchase order, sales invoices, audio-visual materials, as well as any other written documents have to be notarized; even if stored evidence box also need notarization. Unlike USA and Europe, Chinese have strict limits for the discovery of evidence. In fact, until the court date, you will know what evidence the opponent to. In Chinese, to prove that the cases of intellectual property loss amount is very difficult, Chinese court damages is based on the actual loss of the infringer profits or the amount of the intellectual property rights of all people.

A characteristic Chinese intellectual property protection is the administrative and judicial system, foreign when adults can also choose to administrative law enforcement, but only by the administrative law enforcement and can not fully protect the interests of foreign administrative law enforcement, as problems, such as: decentralized administrative law enforcement departments, local protectionism, administrative law enforcement is not widely used. Responsible for foreign enterprises in the protection of intellectual property rights, the administrative organ of the limited success, the intellectual property rights of all people to exert influence on their work, to be investigated the infringer can only rely on the commerce and Industry Bureau conscientiously complete IPR infringement cases and relevant law enforcement work. The intellectual property rights of all people are often difficult to obtain relevant information and the investigation of the circumstances of the case, and the commerce and Industry Bureau to collect evidence also not to be infringing public.

For the administrative law enforcement can fully protect the intellectual property rights, Beijing market good lawyer Zhang Yazhou thinks, the administrative law enforcement may encounter some problems, such as, "the trademark tort law enforcement, can complain to the County Bureau of industry and commerce, the Complaints Bureau of industry and commerce to judge the respondent behavior Is it right? Constitute infringement, then a is the results of administrative punishment. The commerce and Industry Bureau of fake, counterfeit trademarks are the judge, the problem is, if it is fake, because more intuitive so good; but fake, is generally similar goods, such as judgment standard is not unified, there will be some obstacles."

Administrative law enforcement if related to patent issues will also be more trouble, and is responsible for the patent by the intellectual property office place, but the local intellectual property Bureau of industrial and commercial bureau is not strong law enforcement team, intellectual property office personnel rarely, patent infringement judgment is not trademark as intuitive, the local intellectual property Bureau do have difficulty in the investigated process.

The civil litigation, as long as the "Civil Procedure Law" in article 108th, generally belongs to the scope of jurisdiction of courts, but the administrative enforcement of law still face more narrow. Although the law and related regulations have been endowed with many rights, but the administrative law enforcement of intellectual property rights is quite special. Zhang said: "set good firms have found one in Beijing to do the agent knowledge title company called waveguide set good, and has been registered in the trade and Industry Bureau, when we went to the industrial and commercial bureau complaints of the enterprise of unfair competition, industrial and Commercial Bureau advised to go to court to resolve through litigation."

In fact, after the administrative enforcement of law or the parties have other means of relief, for example, the County Bureau of industry and Commerce after the punishment, punishment can apply to a higher level of industrial and commercial bureau to apply for administrative reconsideration, the administrative reconsideration may also result to the court, administrative litigation. We all feel the administrative investigation soon, to get instant results, but the administrative investigation if coupled with the administrative reconsideration and the administrative litigation, trial, appeal, the whole process does not necessarily go down faster than the civil litigation. Zhang said: "say so, administrative law enforcement and civil litigation is There are both advantages and disadvantages., should be carefully evaluated in the selection of specific. For example, involve approximations, unfair competition, patent infringement of trademark and copyright disputes problem, I suggest choosing procedure of civil litigation."

In this case, responsible for foreign enterprises generally think, civil litigation has become the foreign owners of intellectual property rights against infringement choice. In addition to the use of compensation and to stop the infringing act in such a way as to punish the infringement person, foreign also choose through litigation to establish the priority of their legal rights and its requirements. Litigation can also leverage prompted the two sides reached a settlement agreement, of course, the terms of the settlement agreement also need to ensure that it can effectively prevent the tort infringer future.

Differences between Chinese and foreign intellectual property litigation procedure

Talked about the differences between Chinese and foreign intellectual property litigation procedure, the chairman of the European Union Chamber of Commerce Chinese intellectual property working group Paul Kang (Paul RANJARD) that is mainly reflected in the following aspects, at the same time he compared with France and China intellectual property litigation procedure, to illustrate the differences of Chinese and foreign:

1The acceptance procedure, litigation

In France, litigation predictability than China high. In China, the first party should try to make the court accepts the case, if the court ruled inadmissible, such decisions are difficult to overturn. While France's litigation system accepts all litigants filed.

For example, in France the plaintiff sued Party B party, launched a lawsuit procedure. In a direction the accused party B delivered an indictment, Party A will submit a copy of the bill of prosecution to the court, so that it can be the case. The court will be hearing, and to make the decision based on the evidence provided by both parties and related laws. As the proceedings start, which is the difference between France and china. In France, even if the plaintiff in error, the court will be hearing, but will reject. The losing party will bear the litigation costs and frivolous lawsuits against the defendant caused the loss of., transparency

Another difference is about transparency. In France, the court will ensure that all of the evidence and the court debate in the trial date submitted in written form and in between parties to exchange. In Chinese, both in the court to submit evidence for oral argument. However, in the trial before the debate, one of the parties is not always that the other party will submit evidence and preparation.

In France, all the evidence before the court in writing shall be submitted, and only after all the evidence and materials submitted written arguments, the court will be hearing. Written evidence and debate both sides can consult each other materials submitted by the parties, and can make a written response before the court.

3The time of the session

In China, time of the session by the judge. Before the judge notified session, the parties do not know what time trial. The judge will decide arbitrarily trial will be in two weeks, and both parties are by default when can prepare. A case may be accepted before 6 months, six months after the trial there was no progress, but suddenly the court to arrange the time of the session.

In France, the court will periodically check the circumstances of the case hearing. Every two to three weeks of trial court will show case, to confirm the trial. Both parties know they need to adopt the procedures and measures, and the judge together with team collaboration to ensure the trial step by step.

4In addition, many parties single intellectual property litigation

In intellectual property cases involving counterfeit products, the plaintiff usually prosecuted more than one party; but one party defendant will want to join another party, so that is responsible for the identified coping fraud can be borne by the latter responsibility. For example, the party suing a retail store selling counterfeit goods. Retail stores could reply that he is bought these goods from wholesalers, if goods are fake, then the wholesalers should bear the responsibility. The wholesaler may turn to make goods factory, will produce the goods factory as a commodity responsibility undertaker.

In China, single lawsuit with multiple parties is not easy. (the above example) the plaintiff can sue the store, but the store can't prosecute wholesalers in the same action, they must be prosecuted, it is not economical. In France, all of the parties involved counterfeiting can join into a single action, it is the requirement of justice.

5The execution

In Chinese, decision, the court may sentence may not be executed. Therefore, even if you win, the losing party may still continue their illegal activities, and if the court does not execute the judgment, lawsuit is no results.

There is a kind of system in France, is composed of a number of private intermediaries in the authorized by the government, for the enforcement of a judgment by the court permit generation. After the court ruling, actuator can seize the losing party including bank account, the property to the sentence. These actuators are independent, and have the corresponding incentive mechanism to complete the work, which is the execution of the judgment of a party to pay the corresponding fees.

In France, when the court asked the accused to perform specific obligations of the sentence, such as the return of documents, delivery of goods or to stop infringement, the court will inform the losing party, if they do not act, will be forced to pay the fine, but as long as they are not in accordance with the actuator (rather than the court required to execute the judgment) will always increase the fine the amount of.

6, evidence

France also has a unique system involving the evidence obtained private intermediaries. If the parties believe that their intellectual property rights have been violated, his lawyers will obtain evidence of infringement with trademark registration certificate copy to judge, to present the evidence. Lawyer told the court in a company is violating its client's intellectual property, but its customers want to prove the existence of tort. The court will appoint a agency to investigate and collect evidence. Intermediaries can directly enter the store infringing products sites were investigated, also can let the police to assist in the investigation, hire auditors review the infringer's accounts, if the patent can also hire technical aspects related to engineer etc.. Agencies may collect evidence, but such evidence and not questioned, the plaintiff may use the obtained evidence to initiate proceedings.

In Chinese, to prove infringement difficult. Be a part of the infringer usually can obtain evidence of infringement, but without any guidance on the court to collect evidence. In France, the judge may authorize intermediary organizations through checking the infringer account and past sales records to obtain evidence.

In Chinese, administration of industry and Commerce (AIC) has the right to investigate cases of trademark infringement. It has the advantage of industrial and commercial bureau employees have law enforcement powers. However, because the division of power between the administrative and bureaucratic management system and the court, the parties may request the Bureau of industry and commerce to investigate and resolve violations, but due to the related parties and not the Bureau of industry and commerce pay, so it cannot ensure they can finish the work well. Officials of industrial and commercial bureau employees only limited power, they have no obligation to appeal people to provide information.

Through the civil procedure, the parties to protect their private interests. Therefore, the court supervision infringement matters more logical. However, in China, divided between the Bureau of industry and Commerce and the duty of the court to make the parties to protect its intellectual property rights has become a complex problem. The court can review the commerce and Industry Bureau decision, but the judge has no right to the implementation of this decision.

 

Foreign participation in the intellectual property rights in civil litigation strategy

 

Since foreign participation in intellectual property litigation rights is the inevitable way, so you should learn to Chinese legal environment the correct application of litigation skills, to litigation strategy complete in proceedings before, only in this way can seize the initiative in litigation, intellectual property protection enterprise to achieve. Think some experienced litigation in China, foreign, to clear the procedure first before action objective. Some foreign enterprises despite losing still able to achieve the purpose, such as the Toyoda Yoshiri trademark infringement case, although Toyota losing, but through the media reports on action, make clear the relevant public relations and Toyota Geely, Geely has also changed the original logo in litigation. In this case, it is not difficult to see that, only to win is not foreign. Therefore, in the proceedings before it is necessary to clearly want a what kind of results, and then formulate the corresponding action strategy.

In addition, foreign participation in the proceedings in China, there are still some errors, such as, not to the law China active application, but according to the law of his country or practice; or not fully ready to start proceedings, thus responding to the results are often counterproductive. Last month, Beijing city court judgment that Ferrari all company "Benma graphic" trademark is not well-known trademark. The reason is that sentence Ferrari company does not provide evidence to prove that its trademark in China use and publicity, only provide proof of the relevant trademark registration in domestic and foreign products catalogue, these are not sufficient to prove that the trademark in the China widely known for the relevant public and enjoy a high reputation. Well known to influence in a particular market, imposed on other markets is not enough. In this case it is not difficult to see that, despite the Chinese many young people know or heard of Ferrari sports car, Ferrari coupe also has a certain influence in the world, but Ferrari if cannot provide the Chinese marketing proof, only to the judgement of the court is not famous. The reason Ferrari company had probably lies in its not done sufficient preparation procedure, failed to provide the corresponding evidence according to the legal provisions China, but most probably it did not actually happen that in the world famous in the Chinese certain well-known.

 

 

1In China, the foreign proceeding must first understand the procedure and basic law

There have been foreign exchange dollars pay legal costs were returned to the case, the court will decide not to pay legal costs or cost of appeal, and was regarded as the withdrawal. So foreign participation in the proceedings before must understand the basic civil procedure law of the China.

2The choice of location, the litigation

So I suggested, the prosecution of site selection in the larger city better, there are sales of foreign brands developed area in the Chinese, for the production of tort. In less developed regions, through additional manufacturers way prosecution. Such as: A B C production, wholesale, retail, then sued in big city retail C, additional A, B as a joint defendant. If attention is needed to check out A, B location, clarify the specific place where, not repeated prosecution, abuse of litigious right. If the infringer are manufacturers, wholesalers and retailers, must prosecute vendors. This is good, two outside (the plaintiff in foreign countries, the defendant in the field) of cases to the court hearing the case, ruling will not be disturbed. Choose the procedure places, I even suggested to choose not to choose Shanghai because Beijing, intellectual property administrative litigation to trial in the court of Beijing City, Beijing City, the courts have the experience for the trial of intellectual property cases, the applicable law is more accurate than the local court.

3, litigation preservation techniques

Pre litigation preservation is generally more difficult, the procedure to be ratified by the president of the court, the presiding judge and litigation preservation can be approved. Therefore, to apply for the preservation of the proceedings easier. The implementation of the preservation of the proceedings is best not to apply to the local court, but by the court's judges directly execute. As in the Beijing court cases, the judge in Beijing to direct the implementation of the preservation of the proceedings, in the local people's Bank and industrial and commercial bureau can all materials directly transferred to the accounts and the enterprise, the enterprise how many accounts to seal up the number.

If the fear of the accused to transfer property, can apply for the preservation of the proceedings immediately in the case, the summons to the defendant at the same time, even before the defendant received the subpoena, get the litigation preservation ruling, quickly rushed to the domicile of the defendant litigation preservation. To enforce rulings judges should choose convenient traffic tool (such as aircraft), as far as the implementation of security measures before the defendant to respond to the case.

Of course, even rapid attachment, may also encounter such a situation: corporate account, no money, workshop equipment is rented, therefore, the defendant not letter. While A, B, C, D four shareholders of personal account but every month millions of money, this is a very common phenomenon. In this case, the court can decide the recognition of shareholder funds to shareholders to keep private, personal account confiscated. Storage of personal account, the lawsuit mediation is very advantageous, it is to live with the preservation of the proceedings.

4On execution

I give foreign recommendations are not superstitious litigation, litigation in Chinese often only one function, like the movie "the story of Qiu Ju" inside story, to make a statement. The function of litigation is that a foreign court, can't wait for the best, while relying on industrial and commercial authorities. Chinese feature is the administrative judicial system, few Court Executive chamber, execution efficiency is not high, and the national industrial and Commercial Bureau law enforcement unit and the place with hundreds of thousands of people, as long as the court for tort made clear that, the difficulty will greatly reduce the business law enforcement. In addition to Administration for Industry and commerce with great power, can not only check the enterprise whether tort, can also check whether the enterprise false capital contribution, illegal advertising, commercial bribery etc..

If the existence of local protection, you can choose to complain to the provincial administration of industry and Commerce and the State Administration of industry and commerce, may file a reconsideration, can also be used for administrative litigation.

Apply for administrative law enforcement is the purpose, to stop the infringement to tort. The best results of foreign want is even bargain environment, not necessarily for tort compensation.

5Foreign participation in the proceedings, when, must find out the key point

High court judge quality high, procedural and substantive hearing is very standardized, jurisdiction should choose the big city. Investigation and evidence collection must rely on professional institutions, survey firm. Litigation skills, compensation standards should be a reasonable choice. The purpose of litigation should be clear, if the aim is to beat the tort enterprise, must know the lifeline of enterprise and weakness weakness. For example, patent litigation, patent technology is the remote control car window, this is not particularly useful for enterprises. But the patent litigation has many intermediate links, one is the capital account is closed down, on the other hand, is a home of the goods caused by the consequences, are likely to bring a lot of trouble. If the lawsuit of attachment downstream manufacturers of goods, they will be and the infringer accounts. If the infringement manufacturers because the account is frozen payment knot, downstream manufacturers could then switch to other manufacturers. The downstream manufacturers to infringement manufacturers pressure will cause him to make rapid mediation decision. In addition, there is a warehouse, in the newspaper announcement, press conference and other measures, if the home is a big company, will be very careful to negative effects from those measures, will put pressure on the infringer. The downstream manufacturers to consider is the upstream manufacturers to bring trouble, general mediation decision efficiency higher than.

 

 

 

1Foreign investors shall, in accordance with legal procedures to resolve intellectual property issues

In 7, before and after the entry into WTO for 8 years, from the statistics can be seen, the court civil cases of intellectual property right in proportion to accept foreign cases did not change, only 3%. But foreign complaining voice is big, foreign infringement often through a variety of channels to China put pressure on the government, rather than in their own countries that meet tort lawsuit.

Legal protection of intellectual property rights is a characteristic, and in Chinese, foreign in the face of infringement, but not in accordance with international practice or in accordance with the practice of the country, to solve problems in litigation. But to complain, to Chinese pressure even let the government strengthen the administrative law enforcement practice, hope no expense will solve the problem. The private rights of individuals, so that the whole community, this is a kind of phenomenon of the present.

Of course, the lawsuit itself is not a pleasant thing, at all times and in all countries has always been so. For example, in America litigation costs and legal fees are very high, much higher than the China. There are many prosecution enterprises because the cost is too high, can only give up litigation, or with the defendant and shake hands. A lawsuit is a way and weapons, should use, but I do not advocate to use action to solve the problem. Of course, foreign to it, when it comes to their own interests, to take other means can not be a good time to solve the problem, should be used to resolve litigation. According to the law Chinese, for the negotiation problem damages tort later not should the court trial, the administrative organ is unable to make decisions. Administrative law enforcement Chinese, including stop tort, revoke the business license and a fine, if the punishment is wrong, may cause reverse compensation. The administrative law enforcement or litigation, should according to the specific case to choose a better way. In Chinese market economy is not perfect, especially Chinese planned economy for a long time, is in transition period, the problem can be solved by the administrative enforcement of law, administrative law enforcement organs can be selected more. Can choose the administrative enforcement of law or procedure according to the interests of enterprises.

2In China, foreign litigation difficult

Litigation in which countries are difficult, Chinese enterprises to America litigation than America enterprises to Chinese litigation to difficult, American court did not give the parties the convenient in many ways (such as filing, in China service report center, etc.). The parties, lawyers to view the time is very short, while foreign enterprises agent in China action representations of time is very abundant.

Some of the difficulties foreign litigation is not caused by the Chinese understanding of law. For example, in the Chinese litigation need legal representative certificate, the case can be accepted; and some foreign only lawyers signature on to participate in the litigation. Chinese legislation is intended to prevent some of the paper company, or do not have the right to claim. Therefore, foreign enterprises to enter Chinese should adapt to the China law, multinational enterprises should adapt to the national behavior. Foreign abroad to obtain evidence, according to the provisions of the civil procedure law China, need notarization, authentication, which are clearly defined. If foreign fails to perform such procedures, did not violate procedural law to authenticate to the judges. Foreign investors to enter the China for so many years, they did not meet the China law actively, and always in accordance with the behavior of enterprises to do, is to change the law of a country to change corporate behaviour or easier? To promote the legislative process and the need of time, no changes in the legislation, or to change the behavior of enterprises, in accordance with the China current law more practical, do not want China rule of law application of foreign law and Foreign Company practice.

For foreign investors how to avoid notary trouble, I can give a suggestion, if in foreign enterprises need notarization legal authorization, then it is better for the establishment of a company by direct method in Chinese, so you can directly submit relevant documents to a court, is solved in the proceedings should be notarized.

3Litigation in China, to understand China culture

In fact, the foreign proceedings stating the time in China fully, litigation costs low, the attention to listen, the more than America judges consider court. Chinese judge not only basic circumstances of the case, the legal basis to consider, consider the situation, Chinese foreign investment environment, and the environment, so the procedure is quite adequate, most Multi-National Corporation and foreign companies to win the lawsuit of intellectual property.

Foreign also encountered problems with the language and customs. In the language and the cultural aspect, Chinese understanding foreigners know Chinese than foreign, foreign investors should not use their own language in Chinese, with their own culture as touchstones. To recognize the Chinese and foreign legal system different, the difference of the culture of law. Chinese enterprises to go abroad to suit natural to follow local laws, and foreign litigation if always wanted to own national legal provisions, with a total of legal thinking of their country is wrong. Since China is a rare market, is very important to foreign investors, it should go deep into the Chinese culture, understanding Chinese law, in accordance with the law, Chinese China culture involved in litigation. At the same time, foreign investors are also should be aware of Chinese society is not perfect places, such as in the construction of the honesty and credit system, bank insurance, accounting rules, pay attention to these problems, be careful with these problems. Familiar with these Chinese conditions can avoid detours.

In the case of the judgment, the judge will consider how to deal with, the result is the best. The law is the mediation of social contradictions, a case is a drop of water, in a large environment may be correct in the small environment fallacy. So the judge can not recklessly makes a decision, decision not only to apply Chinese laws, but also the specific situation, to consider national conditions, social stability factors, consider the impact of foreign investment environment. In some developed countries, the judge would not consider macro situation, unless some senior judges.

4The reason, of hard evidence

Evidence not only Court issues, but also related to a legislative and social problems, that is evidence system is not in the courtroom, is national system and the legal system, such as the credit system, account system. To perfect the credit system and the system requires a process. At present, no published evidence evidence law, the legal system is not sound, only scattered in the civil procedure law and judicial interpretation, some convenience in the proof system is not. For example, in the case of lack of piracy and counterfeiting, also cannot use the survey firm, a private detective and other intermediary organizations have to compensate for the power of government regulation.

The judge's investigation does not go out of court, foreign evidence system restrict the parties must take evidence out. To request the parties to the evidence submitted to the court within a certain period of time, and the two sides will exchange. Evidence of fixed, further submission is not, except for force majeure. Chinese law there is no legal provisions in this regard, because China evidence system is not perfect, in the stage of the proceedings, the parties are often not take possession of those evidence Qi, China does not stipulate the legal status of private and survey firm detective, that this system harm social order, harm social stability. I don't advocate completely let go of this system, I say it is to give some intermediaries, legal services to certain legal status, help them forensics in the fake. Legislative plan as far as I know, the state legislature is not in evidence law, are also not enough attention. At present the evidence concerning the effectiveness of judicial interpretation is relatively low, common behavior of the public can not restrain proceedings before, not mandatory for the parties to submit evidence.

Evidence system is not sound is the objective cause of hard evidence. But some foreign tend not to put the energy use of proof, but the use of looking for leadership, make reference, complain, complain, rely on the media and other illegal practices, think that this is the China culture. In fact, Chinese has some good lawyers, even in the evidence law is not perfect, but also can proof. But the judicial interpretation in the evidence law is imperfect, but also make some specific provisions on the good, and in the substantive law also adopts the inverted burden of proof, such as, method patent infringement shall bear the burden of proof, selling pirated products people want to give a genuine authorized evidence. Therefore, foreign or can be a good lawyer, make good use of the judicial interpretation and legal provisions, to obtain evidence. In addition Chinese and administrative law enforcement, in some of the evidence is insufficient, can expand the evidence through administrative enforcement clues, sufficient evidence to litigation. Future, Chinese evidence legal system continues to improve, will be more conducive to human rights litigation. Mechanism of judicial protection of intellectual property rights is in normal operation, the legal procedure protection, can be trusted. Do more in evidence, will have the obvious effect.

5The legal means to resolve disputes, is the best way

Foreign often through intellectual property dispute to solve the problem of non legal means, such as heads, to the national leader through diplomatic channels to create public opinion pressure, I don't agree with this approach. In fact, a more efficient approach is in accordance with the law method, approach of rule is not really solve the problem. National leaders did not go directly to solve a problem, it will miss a lot of unnecessary time. If is the big direction problems, such as the investment policy, evidence law, or other legislation, I think foreign should to the leadership of the country, National People's Congress or the legislature to submit proposals, but the specific case should not be used this way. Method of rule just foreign China means, they did not take such measures in other countries, if to do so in the America or Europe, there may be considered interference effect of notarization behavior, judicial justice. Visible, foreign pressure to the government complaining Chinese legal system, at the same time, but also in the destruction of Chinese judicial construction.

6The problem, the amount of compensation

From my personal point of view, the amount of compensation for foreign feel less, main or not show conclusive evidence. In the loss of evidence is sufficient, the court will not not support, recent cases of Yamaha Supreme Court decision right to compensation about 8000000 yuan. However, if some foreign found only 100 pieces of pirated optical discs, but requires judgment against 1000 losses, the court is unlikely to support the. In this case, the foreign should not complain less amount of compensation. Another possible amount of compensation is less, some intellectual property value is too low, Chinese many utility model, appearance design patent value is relatively low, a price was not possible. In addition, intellectual property cases in some countries is the implementation of punitive damages, and Chinese is full compensation for the actual losses, so the amount of compensation may not contrast foreign high.

7The problem of difficulty in enforcement

With regard to the implementation of the problem, first of all transactions in the market before you have to understand the creditworthiness of the opponent, if he bank accounts and fixed assets have better execution. For the small enterprises, bankruptcy of enterprises, it is difficult to get compensation, this is the market risk of economic transactions, so be careful.

Protection of intellectual property rights should be more in place, I advocate to sue infringers those of you the best interests of influential. For your enterprise have the greatest harm enterprise, is also the strength are relatively strong, relatively large enterprises, they have the compensation strength. Of course, no compensation for the strength of small enterprises, but let the infringement of enterprise bankruptcy, your objective will be achieved. IP lawsuits, money is not the only purpose of litigation, some enterprises is to stop the infringement lawsuit. If the enterprise a year playing several tort civil litigation and several criminal procedure, can make the momentum, the basic control of the situation, to reduce the occurrence of tort.

Property preservation before litigation, litigation in the property preservation measures, and a social accounting books system, credit system, bank system, strict and perfect indivisible, and other issues, implementation issues is a comprehensive problem. China is formulating the execution law, for the execution of law in all aspects are more attention. Execution law to deliberately conceal the property behavior punishment harsher, formulate implementation method is not actually good for the enforcement of intellectual property rights, will also promote the smooth implementation of civil judgment.

8, reconciliation

Lawsuit of intellectual property of mediation is a big trend, some litigation judgment enforcement effect is not very good, can let the defendant to consciously perform the mediation, can also encourage both sides to reach some agreements, to become partners, let rivals get win-win. I suggest that foreign to reconciliation, abroad also advocate reconciliation, Chinese reconciliation ratio is 40% - 50%, while the intellectual property cases USA reconciliation has accounted for more than 90%.

9, lawyer

Foreign lawyer should find China lawyers, some foreign lawyers did not fully understand the legal system China, are likely to make some misunderstanding. Some foreign lawyers acting in its case fail, not because he did not understand the China laws, instead of passing some wrong information Chinese legal problem, behavior that harms the country. In addition, foreign to get experience, proficient in legal practice experience and combining the lawyer as well, no litigation practice experience, understanding of the law is not comprehensive, not skilled lawyers sometimes fail to respond to the lawsuit, the challenge.

10In the intellectual property litigation, the problem is the comprehensive reflection

In intellectual property litigation issues not only relates to the field of intellectual property, but the whole civil litigation, the litigation, a comprehensive reflection of the whole social system problem. In fact, China intellectual property legislation and judicial interpretation has been walking in the front of, for example, evidence preservation before litigation injunction and, there is no other proceedings. Intellectual property before litigation support rate in 80% above, an interim injunction in Germany's support rate is very low, not like Chinese so high. So foreign from the overall situation, not from a point of view. In some places Chinese also failed to completely solve the employment and the food situation, the system interface, the construction of the legal system, the economic development problems are not solved, it is too early to talk about some advanced questions. More haste, less speed.