From 3+N to 1+3+17 

As of today, China has established the ‘3+17 IP Judicial System’: 

• 3 IP specialist courts, i.e. Beijing (as of Nov 6, 2014), Guangzhou (as of Dec 16, 2014) and Shanghai (as of Dec 28, 2014), respectively; 
• 17 specialized IP tribunals, i.e. Nanjing, Suzhou, Wuhan, Chengdu, Hangzhou, Ningbo, Hefei, Fuzhou, Jinan, Qingdao (as of 2017), Nanchang, Zhengzhou, Changsha, Tianjin, Xi’an, Shenzhen, Changchun (as of 2018), respectively. 

This 3+17 (regional) framework has brought IP protection in China to a new level, inter alia, in terms of harmonizing assessment criteria, promoting uniformity of the law, and improving the quality of decision making. Yet for long, there has been one key piece missing: a unitary court to handle IP appeals. 

The situation will change from Jan 1, 2019. From that date onwards, the specialized IP judicial system in China will be in fact ‘1+3+17’. 

Recently, the National People’s Congress (NPC), China’s national legislature, issued the Decision of the Standing Committee of the NPC on Several Issues concerning Judicial Procedures for Patent and Other IP Case (in Chinese: 全国人民代表大会常务委员会关于专利等知识产权案件诉讼程序若干问题的决定, the Decision), approving the establishment of an IP Tribunal within the Supreme People’s Court (SPC) to serve as the national IP appeals court. On Dec. 28, 2018, the SPC issued the Provisions on Issues Concerning IP Tribunal (in Chinese: 关于知识产权法庭若干问题的规定, the Provisions; Judicial Interpretation No. 22 [2018] of the SPC) to further clarify the Decision. Both the Decision and the Provisions will come into effect on Jan 1, 2019. 

The SPC IP Tribunal will mainly handle appeals in high-tech/patent cases. Article 2 of the Provisions states that the SPC IP Tribunal shall have jurisdiction over the following: 

(1) The appeals against first instance civil judgments or rulings made by the Higher People’s Court, IP court or Intermediate People’s Court in cases concerning invention patents, utility model patents, new plant varieties, layout design of integrated circuits, know-how, computer programs and antitrust; 
(2) The appeals against first instance administrative judgments or rulings made by the Beijing IP Court in cases concerning invention patents, utility model patents, design patents, new plant varieties, layout design of integrated circuits; 
(3) The appeals against first instance administrative judgments or rulings made by the Higher People’s Court, IP court or Intermediate People’s Court in cases concerning invention patents, utility model patents, design patents, new plant varieties, layout design of integrated circuits, know-how, computer programs and antitrust; 
(4) The major and complicated first instance civil/administrative cases referred to in paragraphs (1), (2) and (3) of this article; 
(5) The cases in which the judgment, adjudication, or mediation decision of at first instance (of the cases referred to in paragraphs (1), (2), and (3) of this article) has already come into effect, against which the retrial or protest has been filed according to law or to the judicial supervision procedures; 
(6) The cases in which the application for extending the time limit for case hearing or for reconsideration of the jurisdictional disputes, fines, or the detention decisions has been filed regarding the first instance decisions (of the cases referred to in paragraphs (1), (2), and (3) of this article); 
(7) Other cases that the SPC considers should be tried before the SPC IP Tribunal. 

It shall be noted that the Provisions are rather basic, to quote from Judge Wang Chuang who has been appointed as the Deputy Chief Judge of the SPC IP Tribunal yesterday. More detailed interpretations will follow soon, including rules regarding the technical investigators participating in legal proceedings. 

Still yesterday, the Standing Committee of the NPC announced the list of the judges appointed to the SPC IP Tribunal. The team is highly specialized: Chief Judge Luo Dongchuan (Doctor of law, Peking University) started his career as a court clerk in the Higher People’s Court of Beijing Municipality in the late 1980s, where he handled the very first IP cases in China. In 1993, the first IP Tribunal was set up in Beijing, and Judge Luo worked there as well. In 2001, he was appointed as the vice tribunal director of the 3rd Civil Division of the SPC, i.e. the former IP Tribunal. 

Stars, moon, sun 

In 2014, China IP Law Society (中国知识产权法学研究会) submitted the well-known ‘proposition of sun’: the 420 courts (IP tribunals, yet not the specialized IP tribunals) across the country are merely dimming stars; even with 3 moons (i.e. the 3 intermediate IP Specialist Courts) up there, the sky would be still dark: to enlighten everything, there must be a sun, i.e. the national IP appeals court. 

It is a clever metaphor, isn’t it? In the past, due to multiple reasons, including unbalanced developments in various regions, lack of expertise, diverging interpretations of the laws or regulations, or local protectionisms, the local Higher People’s Courts would give inconsistent judgments even over the similar cases, which is obviously harmful in many senses. The unified national IP appeals court is expected to bring great institutional changes to the IPR protection environment in China. Now the sun is ready to rise … and shine: stay tuned for the next updates — there is so much to look forward to!

Photo: Shelley, Tian’s Kitten

 

[Originally published on The IPKat on 30 December 2018]