Intellectual Property Courts in China: Status Quo, Problems and the Reform

1. Intellectual Property Courts in China: Status Quo, Problems and the Reform • By Prof. Xiaoqing Feng, Vice-Chairman, China Intellectual Property Law Society （CIPLS）; Director, Institute of Intellectual Property Law, China University of Political Science and Law(CUPL); Director, the Research Center for Intangible Assets Management, (CUPL).

2. Summary • The judicial protection of intellectual property is the most important form and the fundamental guarantee for the protection of intellectual property in China. The judicial protection system of intellectual property in China has experienced the development procedure of setting up special tribunal, pilot "three-hearing-in-

3. one" and special court. The establishment and operation of intellectual property courts in Beijing, Shanghai and Guangzhou marks the establishment of the new hearing system of intellectual property in China. The founding and operation of intellectual property courts has in-depth background and

4. significance, although there are also many problems and difficulties to tackle with.

5. Contents • I. Introduction • II. The Establishment of Intellectual Property Courts in China • III. System of Intellectual Property Court s in China • IV. The Role and Significance of Intellectual Property Courts for Case Hearing of Intellectual Property in China

6. V. The Problem in the Operation of Intellectual Property Courts in China and Countermeasures • VI. CONCLUSION

7. I. INTRODUCTION •  Judicial protection is the most important form of the protection of intellectual property in China. The purpose of China’s judicial protection of intellectual property is to ensure effective implementation and enforcement of intellectual property through the people’s courts at all levels handling cases involving intellectual property in time and correctly. The basic form of judicial protection of intellectual property in China has experienced a period of development from special tribunal, pilot of “. three-hearing-in- one” to the special court for intellectual property. An important symbol is that the first group of

8. intellectual property courts in China has been founded and the running was started in 2014. At present, the operation of the initial special courts of intellectual property has received widespread attention at home and abroad.It means an independent tribunal of intellectual property which has jurisdiction over civil, administrative and criminal cases of intellectual property

9. II. The Establishment of Intellectual Property Courts in China •  The historical process of setting up intellectual property courts in China is as follows: • In 2008, the Outline of National Intellectual Property Strategy issued by the State Council proposed that “Studies also need to be done to reasonably centralize jurisdiction over cases involving patents or other cases of a highly technical nature and to explore issues on setting up appellate courts for cases involving intellectual

10. property”. • On June 6, 2014, the third meeting held by the Leading Group of Comprehensive Deepening Reform of Central Committee of the Communist Party of China examined and approved The Plan on Setting up Court for Intellectual Property. On August 31 of the same year, 10th session of the 12th National People’s Congress Standing Committee made a decision which was announced in the form of legislation that in Beijing, Shanghai and Guangzhou intellectual property courts would be set up.

11. III. System of Intellectual Property Court s in China • 3.1. New System of Jurisdiction Over Intellectual Property Cases • The jurisdiction of the courts has been made clear by the said the Provision of Jurisdiction issued by Supreme People’s Court on October 31, 2014. • 3.2. The Institutional Setup and Personnel Configuration

12.  There are some difference of institutional setup in the three intellectual property courts. • Compared with ordinary courts, the staff of intellectual property courts is decreased and also increased. Assistant judge and associate chief judges are canceled and the number of judges is cut but technical investigator and judge assistant as judicial support are added. The staffing shows its characteristics of “precise organization and flat management”.

13. 3.3. Technical Investigator • In China, the newly set up intellectual property courts have introduced the technical investigator system. On December 30, 2014, the Supreme People’s Court issued the Interim Provisions of Some Issues Regarding the Participation of Technical Investigator in Litigation of the Intellectual Property Courts

14. IV. The Role and Significance of Intellectual Property Courts for Case Hearing of Intellectual Property in China •  To Unify Judgment Standard, Integrate Judicial Resources and Improve Judicial Efficiency • Strengthening the Protection of Intellectual Property and Building an innovation-oriented Country • The Specific Application of Measures of China’s Judicial Reform • Show National Image of Respecting and Protecting Intellectual Property

15. V. The Problem in the Operation of Intellectual Property Courts in China and Countermeasures • 5.1. The Imperfect Job Safeguard for Judges •  As a result of the judge post system implemented by the intellectual property courts, compared with before, the number of judges of intellectual property decreased dramatically but the quantity of cases is growing. As a result of various measures such as the classified management of the presiding judge and judicial support personnel which focus on the responsibility system of presiding judge and the judges of intellectual property court are not linked with administrative level, a team of judges of intellectual property with high qualification and experience in hearing has been set up.

16. We suggest that the introduction of job safeguard system for judges be speeded up and the income level be improved so as to build a team of judges and support staff of high quality.

17. 5.2. To Perfect the Settlement Mechanism for Disputes of Approval of Intellectual Property and Avoid Cycle Litigation • We believes that, to a certain extent, the current settlement mechanism for the dispute of approval of intellectual property are against the final judicial principle for civil disputes and the pursuit of litigation economy and efficiency. Therefore it is not conducive to the resolution of dispute between the interested parties.

18. 5.3. The Three-hearing-in-one Mode Not yet to Realize • The newly established intellectual property courts mainly accept civil and administrative cases of intellectual property and only “two-hearing- in-one” was practiced. • To solve this problem, Shanghai Intellectual Property Court explored their own solutions in practice: Shanghai IP Court is co-located with The Third Shanghai Intermediate People’s Court, which has jurisdiction in criminal cases of intellectual property rights in Shanghai.

19. On the basis of jurisdiction in IP civil and administrative cases, officers of Shanghai IP Court are sent to participate the hearings of IP criminal cases in The Third Shanghai Intermediate People’s Court. Therefore, “three-hearing-in-one” mode is actually carried out in Shanghai IP Court, aiming to realize the harmonization of judgment idea, protection standard and law application in varies IP cases.

20. 5.4. Lack of Special Appellate Court for Intellectual Property •  As early as in 2008, China already proposed “to set up intellectual property appellate court” in the Outlines of National Intellectual property Strategy and then in 2013 in The Decision on Major Issues Concerning Comprehensively Deepening Reforms, the goal is modified to “explore the founding of intellectual property courts”, which means that the Chinese intellectual property court to be built is not limited to the appellate court on the case-hearing level. The later decision of establishing intellectual property court in Beijing, Shanghai and Guangzhou has affirmed this plan.

21. The author also think that, after setting up the first three intellectual property courts, China can set up more intellectual property courts at the equivalent level to the intermediate people’s court and practice trans-regional jurisdiction. Following that, an appellate court equivalent to the level of higher people’s court could be established in Beijing to handle intellectual property cases and guide the national intellectual property courts and unify

22. judgment standard of first-instance. Considering the limited judicial resources and convenience for the appeal of clients, the intellectual property appellate court may set up detached tribunal in the regions where cases are centralized or adopt the assizes.

23. VI. CONCLUSION • The establishment of intellectual property court is as significant as a landmark in Chinese history of judicial protection of intellectual property. It shows the determination of China to strengthen the protection of intellectual property and the confidence in participating in the international competition and aggressive spirit for the transformation of economic development mode and building an innovation-oriented country. China’s intellectual property court is like a window, through which we can not only see the latest trend of judicial protection of intellectual property in China but also each specific measure to carry out the reform of the judicial system of China.

24. THANKS! • Contact by: • fengxiaoqingipr@sina.com • http//www.fengxiaoqingip.com