Intellectual Property Protection by Chinese Courts in 2018
II. Enhancing the robustness of the adjudication system and pursuing innovative approaches to judicial reform
2018 marks the first year when we put into action the values and precepts of the 19th Party Congress and the 40th year of China’s reform and opening-up. Increasingly, intellectual property is becoming the most important intangible asset in the world, a critical component of national interests, and an essential tool when great powers collide. The world is undergoing a period of change, with major development, major transformation and major adjustments, and the international regime governing intellectual property rights is also progressing and evolving. Determined to change and innovate, the People’s Courts are pushing ahead with reforms of the intellectual property judicial regime to recalibrate systems and mechanisms and rebuild capacities for the modern age.
(1) Establishing an Intellectual Property Tribunal under the Supreme People’s Court
Creating an intellectual property tribunal within the Supreme People’s Court is part of the efforts to developing a sound and Chinaspecific judicial protection regime for intellectual property. In February 2018, the Central Commission for Deepening Overall Reform decided that the setting up of an intellectual property tribunal would a key reform focus for 2018. The Supreme People’s Court’s Party organisation regarded the development of the intellectual property tribunal as a key priority, and Chief Justice Zhou Qing chaired a special meeting to study the feasibility of the project, demanding that the intellectual property tribunal meet the criteria being of “high starting point, high standard, high level and international in nature”. On 26 October, the Sixth Meeting of the Standing Committee of the 13th National People’s Congress approved the “Decision of the National People’s Congress Standing Committee on Several Issues Concerning Litigation Procedures for Patent and Other Intellectual Property Cases”. On 3 December 2018, at the 1756th meeting of the Supreme People’s Court Judicial Committee, the “Supreme People’s Court’s Provisions on Several Issues Concerning the Intellectual Property Tribunal” was adopted. The provisions clarified issues such as the scope of cases to be heard by the tribunal and the alignment of procedures. Being a permanent adjudication entity that is part of the Supreme People’s Court, the intellectual property tribunal is an appellate-level tribunal having centralise jurisdiction over appeals of patent infringement and antitrust or other technology-related intellectual property disputes. Within a short time, the tribunal has accomplished a suite of tasks, including site selection, recruitment, upgrading of case-operations system and back-end support, and officially began accepting cases on 1 January 2019.
Establishing the intellectual property tribunal is an important decision and resource deployment that stems from the strategic thinking of the CCP Central Committee with Xi Jinping as the core leader, which is to develop China into a global powerhouse in intellectual property and in science and technology. It is also an important reform measure for our comprehensive deepening of judicial reform and promoting fair justice, an important symbol of the intensification of reform and opening-up in the new era, an important outcome of 40 years of continued reform and opening up, and an important institutional innovation that provides rigorous protection for intellectual property, that serves the innovation-driven development strategy, and that helps cultivate a world-class business environment. Thus, the intellectual property tribunal is of enormous significance to China’s rule-of-law development and its history of advancing the cause of people’s justice.
(2) Progressive deepening of the structural and operational development of intellectual property courts
The intellectual property courts have followed through the National People’s Congress Standing Committee’s deliberations and opinions on Chief Justice Zhou Qiang’s report on the work of the intellectual property courts. Increased guidance was provided for the Beijing, Shanghai and Guangzhou intellectual property courts to elevate the standard of their operations. The three courts have made solid and smooth progress, and have achieved significant outcomes. By hearing high profile cases that draw considerable public attention, the courts establish the rules for deciding cases and promote unification of adjudication criteria, providing essential guidance for development of the adjudication sector. The courts’ efforts at significantly increasing compensation awards and encouraging litigation integrity have won them worthy praises from the society at large.
Having implemented a host of measures, the intellectual property courts are also the ground-breakers and trail-blazers of judicial reform: in terms of human resource management, they put in place the judicial accountability system, the professional judges headcount system, and a flat management structure; in terms of mode of adjudication, they developed a collaborative judge-led model with categorised personnel, and clear accountability and responsibilities; in terms of de-bureaucratisation, they attempted hearing conducted directly by the adjudication committee, and having presidents and chief judges hear cases on a regular basis; in terms of case operations, they explored the case diversion system to separate simple cases from complex ones, and reform of written judgements, and established the technical investigation system to accumulate replicable and scalable experiences. The intellectual property courts also organised symposiums focusing on the development of a system for intellectual property courts, reviewed the lessons and experiences of the intellectual property courts and tribunals, and studied the ways to improve on the system.
(3) Improving the organisational development of specialised intellectual property adjudication institutions with cross-regional jurisdiction
To carry out the national intellectual property strategy, optimise intellectual property case management, and integrate intellectual property adjudication resources, the Supreme People’s Court approved in 2017 the setting up specialised intellectual property adjudication institutions with cross-regional jurisdiction in 11 cities, including Nanjing and Suzhou. In 2018, it approved the establishment of intellectual property tribunals in another 8 cities, namely Tianjin, Zhengzhou, Changsha, Xi’an, Nanchang, Changchun, Lanzhou and Urumqi. Except for Lanzhou and Urumqi, which will commence operations in 2019, the other 6 intellectual property tribunals have commenced operations. Establishing these tribunals are important for unifying the yardsticks for decision-making, improve adjudication quality, and maintaining market order. They are also instrumental in terms of protecting the lawful interests of market players and in implementing China’s innovation-driven development strategy. More effort will be committed to provide professional guidance for cases handled by the specialised intellectual property adjudication entities with cross-regional jurisdiction, and the resource allocation for intellectual property adjudication will be continually optimised to improve on the overall jurisdiction structure.
(4) Continuing with “three-in-one” reform In 2018, the Supreme People’s Court buttressed the results of the “three-in-one” reform by performing field studies in multiple provinces and cities. It also convened in Zhengzhou and Chongqing national symposiums for selected courts on topics relating to advancing the “three-in-one” initiative and investigative studies of intellectual property criminal adjudication. Participants at the symposiums carried out in-depth study of the problems in intellectual property criminal adjudication, and completed the “Research Report on Promoting Nation-wide ‘Three-in-One’ Adjudication of Intellectual Property Cases” and “Nation-wide Research Report on Criminal Adjudication in Chinese Courts”.
The above reports emphasised the need for the intellectual property tribunals of the different levels of courts to fully comprehend the inherent nature of the “three-in-one” mechanism for intellectual property adjudication, that the scope of intellectual property protection stems from a single intellectual property right, and that civil adjudication constitutes the core of the “three-in-one” model and the basis of administrative and criminal adjudication. In intellectual property disputes, civil adjudication determines the jurisdiction structure of “three-in-one” adjudication, in that the jurisdiction of civil cases must be the focal point, around which jurisdiction for administrative and criminal disputes aggregate. The reform of the “three-in-one” mechanism is the chokepoint but also the opening for the People’s Courts to become the main channel for protecting intellectual property in the new era. Therefore, full effort should be devoted to the implementing the “three-in-one” model, as decided by the Central Committee and as arranged by the Supreme People’s Court.
Currently, 17 high courts, 113 intermediate courts and 129 basiclevel courts have implemented the “three-in-one” model. At the same time, the Supreme People’s Court continues to give important priority to fighting infringement and counterfeiting to protect intellectual properties, and has been diligent and committed to this priority, having collaborated with the various authorities to follow through the decisions and arrangement of the CCP Central Committee and the State Council. Led by the office of the National Leading Group on the Fight against IPR Infringement and Counterfeiting, the Supreme People’s Court has participated in the drafting of various documents, compiling materials, jointly endorsing documents, supervising case operations and on-site appraisal. Its excellent performance of the various tasks has won it the accolade of “Outstanding Group Award for Combating Infringement and Counterfeiting”.
The Hunan courts developed comprehensive intellectual property protection regime comprising civil protection, administrative oversight on law enforcement and criminal sanctions. In the appeal by the Tianyuan People’s Procuratorate of Zhuzhou City, where defendants Xiang Fangxiang and Shangguan Zongshang were accused of illegally manufacturing and selling illegally produced registered trademarks and marks, the Hunan Zhuzhou Intermediate People’s Court amended the principal penalty from suspended prison sentence to prison sentence to effectively deter intellectual property crimes.
At the national symposium on fighting infringement and counterfeiting, the Shanghai Pudong Court shared its progress in driving the “three-in-one” adjudication model and was duly recognised. In the “three-in-one” reform initiative for intellectual property adjudication which all Chinese courts are pushing ahead, it is the “replicable and scalable” “Pudong experience” for general emulation.
photo from: Chinese Court
