China's New Dedicated IP Courts
A look at the new IP courts that have been set up in China.
Subsequent to our article which introduced the decision to establish Intellectual Property Court (“the IP Court”) in China two months ago, there have been some new developments on this issue.
Jurisdiction of the IPR Court
On October 27, 2014, the Supreme People’s Court issued the Provisions on the Jurisdiction of the Intellectual Property Courts of Beijing, Shanghai and Guangzhou over Cases.
In accordance with the said Provisions, the IP Courts will be in charge the first instance cases within its jurisdictions as following:
1) Civil and administrative cases relating to patent, new varieties of plants, integrated circuit layout designs, technology secrets and computer software;
2) Administrative cases brought against administrative acts relating to copyrights, trademarks and unfair competition etc. made by departments of the State Council or people’s government over county level.
3) Civil cases relating to recognition of well-known marks.
Based on the above, all the Intermediate People’s Courts in Beijing, Shanghai and Guangzhou will not handle the IP civil and administrative cases anymore; and the grass-roots people’s courts in Beijing, Shanghai and Guangdong Province will not handle the cases mentioned in the situations 1) & 3) above.
Besides, the Beijing IP Court will also have jurisdiction over administrative cases as follows:
Dissatisfying with authorization and determination rulings or decisions involving IP rights, such as patent, new varieties of plants, integrated circuit layout designs etc. made by departments of the State Council;
Dissatisfying with compulsory license decisions, and compulsory license fee or remuneration rulings involving patent, new varieties of plants, integrated circuit layout designs made by departments of the State Council;
Dissatisfying with other authorization and determination administrative acts involving IP rights made by departments of the State Council.
With respect to appeal, the Provisions stipulates that the IP Courts will handle the appeal cases brought by the concerned party against civil and administrative first instance judgment, ruling involving copyright, trademark, technology contract, unfair competition etc. made by the grass-roots courts which locate at Beijing, Shanghai or Guangdong Province; whereas the High People’s Courts which locate at the said places will handle the appeal cases against first instance judgments, rulings made by the IP Courts. The said Provisions has been effective since November 3, 2014.
The Beijing IP Court
On November 6, 2014, only three days after the Provisions become effective, the first ever intellectual property tribunal in China —— the Beijing Intellectual Property Court officially started performing its duty. It is reported that there are four trial divisions, two judicial assisting institutions including technology investigation department and bailiff team, and one administrative institution within the Beijing IP Court.
Apart from specializing in IP field, the Beijing IP Court also sets up a new position called “technology investigation clerk (技术调查官)” which normal courts do not have. It is said that such technology investigation clerk will help the judge with technical facts in a case since the cases in the IP Courts are mainly technology related whereas the judges thereof might lack of relevant technology background. However, such clerks’ qualification, status and roles played in the litigations are still to be clarified. Due to the establishment of the Beijing IP Court, all the Intermediate People’s Court will not accept IP civil and administrative cases since November 6, 2014. It is estimated that cases accepted by the Beijing IP Court will be between 14,000 and 15,000. Besides, the IP Courts in Shanghai and Guangzhou will also be established by the end of this year.
ABOUT THE AUTHOR: Fei Dang
Fei Dang is an Associate in the MMLC Group.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.