Intellectual Property Protection by Chinese Courts in 2018

III. Unifying adjudication criteria and strengthening judicial supervision and guidance

Having unified adjudication criteria and ensuring a uniform approach to law-application for consistency and predictability is necessary for developing the intellectual property legal regime. In 2018, the People’s Courts have devoted much effort to unifying adjudication criteria and supervision of adjudicatory operations, and were able to correctly discern and manage the peculiarities and nature of intellectual property adjudication and align adjudication operations between the different levels of courts to improve adjudication quality and efficiency.

(1) Convening national adjudication work meetings to review and organise all aspects of the current operations 

In July 2018, the Supreme People’s Court convened in Qingdao its 4th National Work Meeting on Intellectual Property Adjudication, for which Chief Justice Zhou Qiang gave important instructions. At the meeting, groups and individuals with outstanding performance were recognised and commended. Ten representatives from different courts shared their experiences. Vice President Tao Kaiyuan reviewed in depth the courts’ work for the past five years and the current situation and tasks, and organised intellectual property adjudication work for the near future. The meeting established the “three-step”

development goal for intellectual property adjudication and specified the direction for the next five years. It also set forth nine major areas of increased emphasis, which are: establishing the courts as the key dispute resolution channel for intellectual property disputes to elevate the courts’ authority in the intellectual property legal regime; strict protection to increase the intellectual property rightsholders’ sense of gain; encouraging innovation to cultivate an innovative legal environment; maintaining competition to preserve an effective and healthy competition mechanism; values-driven to promote the core values of socialism; international perspective to continue elevating the international impact of judicial protection of intellectual property; reform and innovation to continue to modernise the intellectual property adjudication system and adjudication capabilities; supervision and guidance to improve the quality and efficiency of intellectual property adjudication; capacity-building to develop a team of world-class judges. The principles established at the meeting were pertinently instructive for intellectual property adjudication in China for the near future.

(2) Greater focus on studying and publishing judicial interpretations

The Supreme People’s Court issued the “Provisions on Several Issues Concerning the Intellectual Property Tribunal” to expound details such as the nature of the organisation, scope of case acceptance, litigation procedures, working mechanism of adjudicatory powers and linking of procedures. Another judicial interpretation issued was the “Provisions on Several Issues Concerning the Application of Law in Examining Cases Involving Taking Preservation Measures against Infringing Acts in Intellectual Property Disputes”, which provided clarity on matters such as the applicants of preservation cases, review procedure, necessity of preservation, jurisdiction relating to the determination of erroneous applications and initiation of compensation action to redress an erroneous application, removal of preservation measures, application charges. It also drafted a judicial interpretation concerning the participation of technical investigators in litigation, which was submitted to the adjudication committee for deliberation. Judicial interpretations concerning adjudication of administrative cases relating to the granting and validation of patent rights are continuously studied, and new problems that emerged are widely discussed.

By working on and publishing the above judicial interpretations, the Supreme People’s Court has put into effect the “Opinions on Several Issues concerning Strengthening Reform and Innovation in Intellectual Property Adjudication” issued by the CPC Central Committee, to ensure that the “Pilot Programme on Establishing Intellectual Property Tribunal” approved by the Central Committee and the National People’s Congress Standing Committee’s “Decision on Several Issues Concerning the Litigation Procedures in Patent and Other Intellectual Property Cases” are implemented and the desired results achieved, thereby helping to enrich and further develop the China-specific intellectual property litigation system. These efforts are critical for increasing the robustness of a specialised intellectual property adjudication system, elevating the quality and efficiency of adjudication, unifying adjudication criteria, and serving China’s innovation-driven development strategy and intellectual property strategy. The Supreme Court has also worked on the drafting of judicial interpretations concerning the application of the unfair competition law and protection of trade secrets to address international concerns. Two legal seminars on the judicial protection of trade secrets were convened separately in Nanjing and Shanghai to clarify the legal thinking with regard to adjudicating trade secrets disputes, so as to prepare for the eventual promulgation of the judicial interpretation on trade secrets.

(3) Enhancing judicial policies to accomplish tasks assigned by the National People’s Congress

The Supreme People’s Court issued the “Notice on Strengthening Judicial Protection of ‘Red Classics’ and the Lawful Rights of Heroes and Martyrs to Promote the Core Values of Socialism”, drafted the “Letter from the Supreme Court’s General Office on Incorporating Content Relating to ‘Strengthening Judicial Protection of Red Classics and the Lawful Rights of Heroes and Martyrs to Promote the Core Values of Socialism’ upon the Amendment of the Copyright Law” and the “Report on Matters Relating to the Strengthening Judicial Protection of Red Classics” to underline the importance of protecting the legacy of red classics and the lawful rights of heroes and martyrs according to law. The above documents also advocate the importance of paying attention to taste, style and responsibility, with the aim of educating and guiding the general public, especially the youth, to consciously resist being “lowly, crude and tawdry”, warn against historical nihilism, and regulate broadcasting activities to protect social and public interests.

The Supreme People’s Court also submitted the “Report on the Study and Implementation of the National People’s Congress Standing Committee’s Report on the Audit of Copyright Law Enforcement and its Deliberations and Opinions” as assigned by the National People’s Congress’ law enforcement audit. Based on the problems as identified from the law enforcement audit and the judicial practice, the report proposed practical corrective measures and opinions pertaining to matters such as substantive reduction of the cost of defending rights, reducing the long litigation period, increasing the amount of infringement damages.

(4) Actively participating in the revision, compilation research and drafting of laws 

The courts have been active participants of in revision of laws and regulations, such as the Civil Code, Patent Law, Copyright Law, Law Against Unfair Competition, Trademark Law, and the Regulations for the Implementation of the Trademark Law and Regulations on the Protection of New Plants Varieties. Judicial policies developed and experiences accumulated from adjudication practice were promptly and specifically studied and assessed, and recommendations for amendments proposed.

A national symposium for selected courts was convened in Beijing to discuss the amendment of the Copyright Law. Extensive and indepth discussion were carried out, focusing on the classification of works, the rights included in copyright, copyright agreements, collective management, provisions on related rights, legal liability and coordination and alignment with international treaties and other laws. After thorough discussion, the “Supreme People’s Court’s Opinions on the Amendments to the Copyright Law” was submitted to the Ministry of Justice, and the document was highly commended, and the opinions contained within were well-received.

(5) Strengthening adjudication research and case guidance

Thematic forums on current and hot intellectual property issues. In November 2018, the Supreme People’s Court convened in Hangzhou, a symposium to solicit opinions and recommendations for the “Several Provisions on Evidence for Civil Procedure for Intellectual Property Disputes (Draft)”. The meeting participants conducted an investigative study on judicial interpretation of evidence in intellectual property civil litigation and studied the use of special procedure in intellectual property litigation.

Several other research studies were also initiated. The research study on malicious trademark registration was a response to the problem that has attracted international attention and serious social displeasure. Another research was conducted jointly with the State Administration for Market Regulation (SAMR) Trademark Office to provide recommendations on the possible measures to deal with trademark squatting. To develop a better civil justice system to deal with monopoly matters, a research study on civil procedural issues relating to anti-monopoly disputes was initiated, so that the Anti-Monopoly Law could be better leveraged to curb monopolistic behaviour expeditiously. To commemorate the 10th year of promulgation of the Anti-Monopoly Law, the Supreme People’s Court organised a symposium to review the experiences relating to the adjudication of civil cases involving monopoly disputes, so as to pave the way for the revision of the Anti-Monopoly Law and the drafting of judicial interpretations, and that a fair and effective mechanism that conduces to market competition can be maintained.

Other areas of research include the study of the conflicts between industrial design and copyright, for which seminars were held in Beijing and Kunming, and the “Study Report on the Conflicts between Industrial Design and Copyright” was drafted to elucidate the similarities and differences and the conflict of rights, and from which practical adjudication guiding opinions could be generated. The study on the judicial protection of outcomes from innovative business models was another interesting attempt. On April 2018, the Supreme People’s Court’s Intellectual Property Judicial Protection Research Centre convened an assessment conference to deliberate and evaluate the outcomes of the “Study on the Judicial Protection of the Outcomes of Innovative Business Models”. Leaders from the relevant agencies and experts and academics attended the conference to deliberate and assess the research project’s outcomes, and provided feedback, adjustments and revisions for the report.

The local courts also actively carried out research studies in different areas. On 20 April 2018, the Beijing High People’s Court issued the “Beijing High People’s Court Bench Book on Adjudicating Copyright Infringement Cases”, which specifically sets forth that when adjudicating copyright cases, judges should adhere to the basic adjudication principles of providing greater protection, of encouraging creation, of promoting dissemination and of balancing interests. By summing up the thinking behind the hearing of cases involving copyright infringement, the bench book provides useful guidance for the hearing of internet-related copyright disputes by the Beijing Internet Court and the adjudication of copyright disputes by other Beijing courts. The bench book is a valuable contribution to advancing development and innovation in Beijing’s cultural sector.

Again, on 20 September 2018, the court published the “Opinions on Providing Judicial Protection for Strengthening the Development of a National Technological Innovation Centre in Beijing”, which sets forth adjudication rules and requirements for disputes involving innovation-based technologies and relevant cases, and lays out specific measures for overcoming obstacles stemming from institutions and mechanisms that hamper development of intellectual property adjudication.

In April 2018, the Guangdong High People’s Court published the “Operational Guidelines on Adjudicating Standard Essential Patent Disputes”, which looked in to the adjudication thinking and methodology behind disputes involving standard essential patents.

“China Intellectual Property (English Edition)” and world-renowned specialised intellectual property media reported on the publication in great detail, providing penetrating interpretations of the Guidelines. It was encouraging to see Qualcomm Technologies and Huawei Technologies Co. Ltd selecting Guangdong Province as the choice jurisdiction for standard essential patent disputes.

The Shanghai High People’s Court issued the “Several Opinions on Strengthening Judicial Protection of Intellectual Property” to implement measures that make production of evidence convenient for the parties, that increase the amount of compensation, and that shorten the adjudication cycle, which was highly regarded by the society at large.

The Sichuan High People’s Court published the “Guidelines on Adjudicating Disputes Relating to the Infringement of the Right of Information Transmission in Networks” and the “Bench Book on Adjudicating Trademark Infringement Disputes” unify the adjudication criteria for all courts in the province.

To address the inconsistent standards used in determining electronic evidence submitted during intellectual property litigation, the Zhejiang courts developed a manual entitled “Examination and Determination of Electronic Evidence Relating to Intellectual Property Rights”.

The Shandong High People’s Court was highly productive, having completed the Supreme People’s Court’s major research project entitled “Research on the Intellectual Property Protection of New Forms of Innovation”, the “Research on Strengthening Judicial Protection of Intellectual Property”, the “Research Report on the ‘Anti- Monopoly Law of the People’s Republic of China’” and the research study on “Standard of Proof for Trademark Infringement Cases”

The Tianjin High People’s Court completed the Supreme People’s Court’s major research project entitled “Research on the Judicial Protection Strategy of Intellectual Property in China” and the judicial practice-based thematic research project entitled “Case Study on the Legal Regulation of New Types of Unfair Competition on the Internet”.

Leveraging the role of research bases and bolstering case guidance and case studies: After years of searching and learning, the People’s Courts have developed a unique “four-in-one” intellectual property case guidance system underpinned by typical cases, guiding cases, annual case reports and case-guidance research bases.

In April 2018, Tao Kaiyuan, Vice President of the Supreme People’s Court convened and chaired the Work Symposium of the Supreme People’s Court’s Intellectual Property Judicial Protection Research Centre cum Seminar on Theories of Intellectual Property Judicial Protection. In his speech, Justice Tao stressed the need to unify thinking and forge synergies in promoting the continued innovation and practical application of intellectual property theories and research methods, research perspectives and outcomes.

Representatives from different theoretical study bases and research bases spoke at the symposium. This enabled the research centre to contribute to theoretical research in the judicial protection of intellectual property in the new era, and to leverage its theoretical research capabilities to contribute advice and suggestions.

The Supreme People’s Court reviewed the classic cases relating to the judicial protection of intellectual property, and compiled and published the Chinese and English versions of the “Collection of Classic Cases on the Judicial Protection of Intellectual Property in China” to make known the court’s achievements. The work has attracted broad interest. Also publishing soon is the “Supreme People’s Court Guiding Cases for Intellectual Property Adjudication (Volume 10)”. Other publications include the “Analysis of New Challenges in Intellectual Property Judicial Practice: Hot Issues on Patents, Trademarks and Copyright”, “Analysis of New Challenges in Intellectual Property Judicial Practice: Intellectual Property Judicial Protection and Industrial Development, “Interpretations and Applications of Intellectual Property Judicial Interpretations (Updated Edition)”. Through its monthly publication “Trends in Intellectual Property Adjudication” and work reporting, the Supreme People’s Court has developed a regular guidance and communication mechanism with lower level courts.

In December 2018, the Chongqing High People’s Court edited and published the 7th edition of its “Research on Intellectual Property Adjudication in China”, comprising 52 articles and totalling 650,000 words. As a continuous publication by the Judicial Theory Committee and an important series under the Chinese Judicial Theory series, this is a highly influential publication. The Chongqing High People’s Court also jointly organised with the Southwest University of Political Science & Law the “China Intellectual Property Judges’ Forum”. Four forums were held in 2018.

In March 2018, the Guangxi High People’s Court published the “Collection of Written Judgments on Typical Intellectual Property Cases by Guangxi High Court (2011 to 2016)” targeting at intellectual property judges, and developed the “Guidelines on Adjudicating Design Patent Infringement Disputes” to provide standard yardsticks for deciding disputes involving the infringement of design patents.

photo from: Chinese Court