New Private Law? Intellectual Property 'Common-Law Precedents' in China

Abstract

China has established a dynamic legal system by using guiding cases to improve adjudicative consistency. The guiding cases are de facto binding as “common-law precedents” and the only binding cases in China. The Supreme People’s Court (SPC) selects, compiles, and publishes guiding cases. In China’s dynamic legal system, the U.S. notably influences the intellectual property (IP) legal mechanism and the legal rationales for adjudicating IP disputes. Some amendments to the IP statutes of China are in response to actions and criticisms by developed countries, especially the U.S. The IP guiding cases reflect the voluntary development of the IP regime and the enforcement of the IP statutes in China. In the U.S., IP laws are mainly considered as private law, but they do involve some public law characteristics, as shown by the intervention of legislators and the development of statutory interpretation by the courts. These public law characteristics do not transform IP laws into public law, but they evoke the concept of New Private Law in modern IP laws. This study reviews all twenty-two IP guiding cases (i.e., patent, copyright, trademark, anti-unfair competition, anti-monopoly) in China and compares them with corresponding judicial precedents in the U.S. I argue that Chinese IP guiding cases are not conventional private or public law, but instead can be explained under the theories of New Private Law. The IP guiding cases follow public policies to be part of governance and, as a result, show their influence on policymakers and legislators. Consistent with the concerns of U.S. IP holders, these guiding cases show that Chinese courts are instructed to be conservative in awarding both damages and injunctions. The courts function as a gatekeeper and consider IP quality to prevent over-rewarding IP holders either through the judicial system itself or the market when government agencies liberally or incautiously granted the IP rights. For trademark and unfair competition cases, the courts are instructed to give public apologies for substituting economic damages to IP holders. Moreover, the IP guiding cases suggest that the SPC and Chinese judges are inclined towards a utilitarian and realistic/pragmatic judicial philosophy rather than a formalistic approach in their statutory interpretation.