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13 February 2015
On October 31, 2014, China’s Supreme People’s Court issued the Provisions of the Supreme People’s Court on the Jurisdiction of the IP Courts in Beijing, Shanghai and Guangzhou, which took effect on November 3. The Beijing IP Court was established on November 6, while the IP courts in Shanghai and Guangzhou were established before the end of last year.
April Chu, an associate at CMS China in Shanghai, believes the establishment of China IP courts shows great progress for the Chinese judicial practice in the IP sector.
She says that Chinese IP judges and experts have been discussing the establishment of IP courts since 2008. Development of the system lagged, however, since it would require substantial changes to the court organization in China. “The rapid growth of the IP cases in the past 10 years set a higher requirement for establishment of IP courts. Therefore, the IP courts were inally established in Shanghai, Beijing and Guangzhou, where IP disputes most often arise,” she says.
Chu says that patent judges in China usually do not have any academic scientiic background. With the promulgation of the decision, the IP Courts plan to establish a “technology experts” system to assist judges to deal with technologically complex patent cases. “Therefore, I think the establishment of IP courts will be helpful for the trial of the IP cases, especially patent cases in China,” she tells Asia IP.
She adds that specialized IP courts can be beneicial for foreign companies, because these courts will have more resources to hear IP matters, should be more experienced and should have special expertise. However, since the judges in IP courts will still have a strong connection with Chinese authorities, it remains to be seen whether the establishment of IP courts will solve the problems of local protectionism and political inluence in IP litigation.
“Unlike Western countries, in China, the president of the court (including the IP court) is appointed by the local congress of the same level, and his ofice term can be terminated by the congress at any time based on certain reasons. After the president has been appointed, he/she will further appoint judges of the court. The president and his/her appointed judges do not have life tenure. Most importantly, they are paid by local governments,” she says, adding that it might be dificult to solve this problem in China due to its political regime.
“China plans to reform its judicial system in the upcoming years. According to the spirit of the Frame Opinion on Several Issues of the Reform of the Judicial System issued by the central government in 2014, the chief judge will become more independent to hear cases,” she says. “It seems to imply that the judges will be less inluenced by Chinese authorities in near future.”
