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).
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-
• 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
• significance, although there are also many problems
and difficulties to tackle with.
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
• V. The Problem in the Operation of Intellectual
Property Courts in China and Countermeasures
• VI. CONCLUSION
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 “. threehearing-in- one” to the special court for intellectual
property. An important symbol is that the first group of
• 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
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
• 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.
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
•
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”.
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
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
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.
• 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.
• 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.
• 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.
• 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.
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.
• 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
• 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.
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 innovationoriented 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.
•
THANKS!
•
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•
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•
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•