Sunday, February 5, 2012

Civil and criminal patent enforcement

Patent enforcement in SE Asia's emerging markets is still a rarity but cases are becoming more frequent.

Thailand's IP/IT court has seen quite a few civil patent cases in recent years. IP Komodo has heard it said that given that it is one of the most sophisticated courts in the region it is a rare place to test patent cases out while avoiding the costs of sophisticated jurisdictions. And IP Komodo knows a clever litigant who filed in Singapore, to obtain the discovery then quickly went to trial in Thailand with that information to seek a judgment. As Thailand has a lot of local technology manufacturing some plaintiffs see it as a good place to block competitors too. Most actions for patent infringement are civil – there are around 30-40 per year. Many are pharmaceutical matters.

But Thailand also operates a criminal patent enforcement system. There are a dozen or so cases per year, but it really only works with clear cut infringement, otherwise there are difficulties in proving the "wilful" infringement requirement.

Indonesia operates both a criminal and civil patent system too. Civil cases are very rare, typically a couple of cases per year. So far most have been patent revocations. Criminal patent infringement in Indonesia has tended to be brought through police raids, and all cases reach a settlement, recognising the difficulty in proving wilful infringement, especially given most are secondary liability cases because the products are imported.  In any event almost no IP cases of any kind reach prosecution in Indonesia at present.
As a general observation IP Komodo thinks it is questionable whether public authorities really ought to be engaging in criminal patent investigations. IN IP theory patents are more like commercial property disputes. Patent protection unlike copyright (which seeks to protect artistic freedom and creativity) is not generally felt to be deserving of criminal attention. And given the complexity of patent disputes, are administrative bureaucrats like the police really equipped to handle such cases?

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