16 December 2013
At the Third Plenum of the Communist Party of China's 18th Central Committee, the Decision on Major Issues Concerning Comprehensively Deepening Reforms was released, setting the framework for a number of changes to be made in the country. Among the changes, the government announced plans to establish a specialist court for intellectual property.
The decision specified that the government should enhance the utilization and protection of intellectual property, improve the stipulating mechanisms for technology innovations and explore ways to establish IP courts.
Xiao Caiyuan, senior partner at Guanghe Law Firm in Shenzhen, says that establishing an IP court would improve the level of IP protection in China. “The number of IP cases heard at courts is increasing in China. In 2012, there were nearly 90,000 civil cases heard on IP issues, a 40% increase compared with 2011. Establishing IP courts meets the need of such developing trend by specializing IP trials and unifying judging standards.”
“Establishing an IP court is [moving China] in a direction to a more professional and systematic way of solving IP disputes,” says Liu Mengbin, a partner and vice president at Guangdong Schihead & Partners in Guangzhou. Under the current judicial and administrative system, there are problems of different judging standards, low efficiency and variation of judges’ professional level. Liu says he would be happy to see the improvements made on these issues once the court is established.
“It is a very good proposal to advance the IP industry in China,” says Huang Min, senior partner and head of Intellectual Department of DeHeng (Hefei) Law Offices. Unlike other civil cases, IP cases require a much high level of professionalism. Having independent specialist IP courts could ensure the quality of the hearings and enhance IP protection, he says.
“Establishing IP courts has a positive impact. It shows that the government has the determination to enhance IP protecting in China,” says Wang Tengfeng, founding partner at Guangdong Zhiming Law Firm in Shenzhen.
Wang says that it would not be easy to establish such a court. Besides the human, financial and material resources needed, obstacles remain regarding the public’s awareness of IP. “The infringement of IP rights in developed areas, such as the Pearl River delta is rather dominant. Local SMEs make a large profit out of infringement, which in turn increases the local economy by paying more taxes and hiring more labour. Strong IP enforcement would affect the economy, which might not be favourable to local governments.” Despite the hurdles Wang foresees, he is optimistic about the establishment, saying that it will bring more convenient and professional IP practice to the country.
While strengthening the power of IP protection, the establishment could also weaken the influence of local administration, says Xiao. He believes that the influence of the IP court will be greater than other specialist courts, such as China’s military, railway and maritime courts. “The speed with which these courts will be established might be faster than the majority’s expectation. There will be IP courts in developed provinces, such as Guangdong and Jiangsu, in the near future,” Xiao says.
“The country is paying more and more attention to IP protection,” says Wang, noting that IP cases are tried by the civil, criminal and administrative courts but that, recently, some courts have adopted a new system that consolidates the three. “I personally think it is a bold endeavour to establish a specialist court. If we keep pushing, I am looking forward to seeing the establishment of the IP court,” he says.
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