24 October 2014
The Standing Committee of the National People’s Congress has adopted a resolution which will result in the establishment of specialized intellectual property rights courts in Beijing, Shanghai and Guangzhou.
“More cities may be approved to have their own IP courts after three years or so. The Supreme People’s Court will report the three courts’ effectiveness to the Standing Committee, and the Committee will then decide whether to expand the IP courts to other cities,” Damien Wang, an attorney at law at Chang Tsi & Partners in Beijing, tells Asia IP. “We have strong confidence in the expansion of IP courts – it has been a long standing appeal from all walks of IP field. Many cities such as Shenzhen have already begun the pilot test of ‘three trial integration,’ namely, trial civil, criminal and administrative litigation in the same trial division of the same court, so Shenzhen is highly likely to be approved for another IP court next.”
The IP courts will handle both civil and administrative patent, trademark, copyright, new plant variety, integrated circuit layout design and technologyrelated litigation and appeals.
Criminal cases will be handled as in the past, Wang says. “The first instance will go to a basic-level people’s court, and second instance will go to intermediate level court.”
Appeals against the IP courts will be heard in local higher people’s courts. Presidents, vice presidents and chief judges of these courts will be appointed by local legislatures.
In a report to legislators, Zhou Qiang, president of the Supreme People’s Court, said that IP cases are critical in moving the country’s innovation and development forward and that more skilled judges and professional trials are needed. More than 100,000 IP cases of first instance were concluded by courts at all levels in China in 2013, according to the third plenary meeting of the 12th National People’s Congress.
China’s courts are making extraordinary efforts to recruit more professionals from law schools, retired judges, members of the procuratorate, lawyers and scholars. “The government is reorganizing the court system by establishing new courts such as the IP courts and the Beijing No. 3 Intermediate People’s Court, and by empowering basic-level people’s court with more jurisdictions,” Wang says. “More training is also being provided to the judges, including intra-court training, IP seminars, as well as communication with foreign IP professionals.”
Procedural and evidence rules and litigation preservation measures will also be improved. The IP courts will also establish a forensic investigation system to evaluate technical facts.
Currently, courts are very reluctant to preserve evidence under the request of plaintiff. “Courts should be more active, because evidence reservation directly affects damages claims. Courts should be clearer about the burden of proof. Although the principle is clear that ‘he who asserts must prove,’ in practical cases, courts are inexplicit on which party should prove each fact or issue,” Wang says. “China’s evidence disclosure procedure faces much criticism because it allows one party to ambush the other by filing evidence in the last minute of the evidence submission deadline. Courts often carelessly admit evidence submitted after the submission deadline, so parties are often confused about when and how to file evidence.”
Huang Jianping, deputy to the National People’s Congress, said in comments to China Daily that believes that the IP courts will help integrate resources so as to improve the judicial system.
“The decision establishing IP courts will be welcomed by IP owners,” says August Zhang, an executive at Rouse in Beijing. “Firstly, it is an important step towards bolstering judicial expertise in technology-related cases. This also assists the IP courts in their primary mission to promote and encourage the protection of technological innovation in China. Secondly, the establishment is expected to improve the consistency of IP judgments, which will address increasing concerns about contradictory judgments made by different Chinese courts. It is also likely that the three cities to host the IP courts will become even more important venues in forum shopping strategies for future IP infringement cases.”
Members of the Standing Committee adopted the resolution through a vote at the bi-monthly legislative session that closed on August 31, 2014.
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