China to establish specialised IP courts
Preparation work has been underway ever since and it is believed that the three specialised IP courts will be set up by the end of the year.
Since the very first IP tribunal was established in a Beijing court in 1993, IP tribunals have been established at the Supreme People’s Court, 32 high people’s courts, more than 400 intermediate people’s courts and more than 100 designated basic people’s courts throughout China. There are currently about 3,000 specialised IP judges in China.
However, in the Chinese court system, IP civil cases, such as infringement cases, are heard in IP tribunals; IP administrative cases, such as appeals against the Patent Re-examination Board’s decisions, are heard in administrative tribunals. IP criminal cases are heard in criminal tribunals.
"The president of a specialised IP court is appointed by the local People’s Congress where the respective specialised IP court is located."
Although seven high people’s courts, 74 intermediate people’s courts and 80 basic people’s courts have been running a pilot programme that brings together judges from all three tribunals in their respective courts to form a collegiate bench in the IP tribunal for an IP civil case that involves civil or criminal action, there are still problems.
These include a varied level of expertise across different courts regarding patents, integrated circuit layout designs, new plant varieties, and software. Inconsistent standards are being adopted in different courts, there is evidence of local protectionism in some courts, and there are multiple rounds of litigation.
According to the Standing Committee of the National People’s Congress’s resolution, the specialised IP courts have jurisdiction over the first instance of IP civil cases and the first instance of IP administrative cases regarding patents, new plant varieties and integrated circuit layout designs, as well as technical knowhow.
Specifically, the specialised IP court in Beijing has jurisdiction over the first instance of administrative lawsuits which are appeals against decisions of administrative departments under the State Council, such as the State Intellectual Property Office and the Patent Re-examination Board, regarding the grant or validity of IP rights. The three specialised IP courts have territorial jurisdiction across regions in China, and in the first three years after their establishment this cross-region territorial jurisdiction may first be achieved in the respective province or municipality under the central government where a specialised IP court is located.
The specialised IP courts also hear appeals against decisions in trademark and copyright civil or administrative lawsuits made by the first instance basic people’s court in the municipality where the respective IP court is located.
Appeals against decisions made by specialised IP courts are heard by the high people’s court where the respective specialised IP court is located.
The specialised IP courts will be supervised by the Supreme People’s Court, the high people’s court where the respective specialised IP court is located and also by the Procuratorate, the national agency responsible for prosecution and investigation.
The president of a specialised IP court is appointed by the local People’s Congress where the respective specialised IP court is located. The vice president of a specialised IP court, chiefs of tribunals and adjudicating judges, and members of adjudicating committees will be named by the president of the respective specialised IP court and appointed by the local People’s Congress. The specialised IP court reports to the Standing Committee of the local People’s Congress where the respective specialised IP court is located. The Supreme People’s Court reports on the implementation of the IP courts to the National People’s Congress after three years.
Establishing three specialised IP courts is just a small step towards the reform of the IP litigation system. There is still no national patent appeal court like the Court of Appeals for the Federal Circuit in the US.
Stephen Yang is a partner and patent attorney at Peksung Intellectual Property. He can be contacted at: yyong@peksung.com
