Chinese Patent Law - Obviousness and Case Selection Bias

I really appreciate researcher like Santa Clara University Law student Xin Ma posting research about Obviousness under Chinese Patent Law for people to read. Understanding Chinese Patent Law is important once the more important challenge of “rule of law” is resolved. (see next paragraph)

Although some people, like patent attorney Mark Walters, consider that “Enforcing IP Rights in China: It’s Not as Hard as You Think“, I still have strong reservation and doubt if the judges in China can consistently withstand potential pressure from the Chinese government. After all, it is naive to think the judges in China have “independence” in any remote way like their counter parts in countries that have a tradition of respecting the “rule of law” backed by a government accountable to the public in a democratic manner.

Quoting the China section of the “Thomson Scientific 2008 Patent Focus Report” (PDF file, emphasis added) [hat tip: Peter Zura for the link]

During 2006, there were more patent cases filed in China than in any other country, and while 98 per cent of these involved only Chinese companies, in the two per cent featuring a plaintiff from outside the country, the foreign entity ended up victorious 90 per cent of the time.

What the report author and the above bloggers, Mark and Peter, failed to pointed out was the existence of “Case Selection” bias. In a sense, foreigners only pick the best of the best cases to litigate so no wonder they appear to win more. If foreigners (especially small businesses/inventors) go into to China to litigate their patent cases and expect the above win rate, they may face with some unpleasant surprise.

Note: The idea of “Case Selection” bias is not my own as I learned of this insightful idea from two Cornell law professors during a previous consulting engagement for a client. Here is the reference for those that like to read more.

Xenophilia or Xenophobia in American Courts? Before and After 9/11
by Prof. Kevin M. Clermont and Prof. Theodore Eisenberg, Cornell Law School