China ‘fundamentally’ alters technical IP dispute appeal process
China approved changes to litigation procedures in patent and other IP cases in late October, in a move that fundamentally alters how the appeal process will work for certain technical disputes, according to law firm Gowling WLG.
On October 26, China approved the “decision of the standing committee of the National People's Congress on several issues concerning the litigation procedures in patents and other intellectual property cases”.
Under current rules, the Supreme People’s Court will only hear IP cases as a final route of appeal.
Technical IP first instance cases are heard before intermediate courts or specialist IP courts, explained Alice Li, principal associate in Gowling’s Guangzhou office, and Jamie Rowlands, partner in the same office, in a post about the recent approval.
Appeals against these decisions are heard at provincial level high courts, and the cases will only go before the Supreme Court if a further appeal is allowed.
But, under the new procedure, which takes effect on January 1, 2019, the Supreme Court can hear appeals from first instance civil courts in relation to technical IP disputes.
These include cases on invention patents and utility models, new plant varieties, integrated circuit layout designs, technical trade secrets and computer software copyright.
WIPR reported in October that China is planning to create a new judicial body which would fall under the remit of the Supreme Court, according to the South China Morning Post.
At the time, Zhou Qiang, president of the Supreme People’s Court, reportedly said that, in addition to the new judicial body, there are discussions around the establishment of a national appeals system for IP disputes that would encourage and protect innovation.
Judgments from these tribunals will be second instance decisions and parties will be allowed to apply to the Supreme Court for a full re-trial, said Gowling.
China already has specialised IP courts in Beijing, Shanghai, and Guangzhou. They were set up in 2014 to handle the increasing number of IP disputes, particularly in relation to piracy and counterfeiting.
“On the downside, the implementation of the decision might lengthen the litigation process given the high number of appeals which are currently heard at many different provincial high courts,” warned Gowling.
The firm added that centralising the appeal courts into a single venue will put great strain on the efficiency of the court unless it is structured in such a way to address this potential issue.
“In addition, it is disappointing that design patents are not included in the jurisdiction of the new second instance tribunal,” added the Gowling lawyers.
However, the lawyers are optimistic that the development is good news for foreign litigants in China, as the placing of technical appeals into a single tribunal should increase the sophistication, neutrality and consistency of appeal decisions.
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