In November and December 2014, China announced the long awaited establishment of three specialized IP courts in the Tier 1 cities of Beijing, Guangzhou and Shanghai. These courts are empowered to hear the following cases:
- First instance civil and administrative cases related to patents, new plant varieties, layout design of integrated circuit, technological secrets and computer software;
- First instance administrative cases involving copyright, trademark and unfair competition against administrative decisions of the State Council Department or above the county level departments (Beijing IP court will have exclusive jurisdiction over first instance appeals against decisions of the IP Administrative Authorities, such as the Patent Review Board and the TRAB);
- First instance civil cases regarding the recognition of well-known trademarks and;
- Second instance civil and administrative cases regarding copyright, trademark and unfair competition heard at first instance by district/primary courts.
The IP courts in Beijing and Shanghai will have jurisdiction over the cases in their respective cities, while Guangzhou IP court will have cross-regional jurisdiction over the entire Guangdong province.
IP professionals in China are generally upbeat about these welcome developments and see many potential advantages for IP owners flowing from the introduction of these new IP courts:
- The establishment of specialist IP courts will help unify the trial standards and make rulings more consistent (For example, the rulings made in different IP tribunals in Beijing No.1 and No.2 Intermediate Courts were not always consistent previously).
- This will bring more specialization and expertise. The judges will hear only IP cases and will therefore be specialized in handling IP disputes. The new system also allows for “technical investigators” (not judges or lawyers) in the IP courts. These technical investigators are employees of the court with scientific backgrounds, and their role is to assist the judges on the complicated technical issues, provide judges with professional advice and technical support. Undoubtedly, they will play an important role in patent and software copyright cases.
- The “Decision on establishment of intellectual property courts in Beijing, Shanghai and Guangzhou” also states that IP courts could have cross-regional jurisdiction on IP cases in the upcoming 3 years. If this is implemented, the IP courts would function more independently, which will help curb the problem of local protectionism during the trial and in relation to the judgments of IP cases.
In light of the above, the establishment of specialized courts is a major step forward in relation to China’s judicial reforms. We still have much to look forward to, for instance the IP court’s jurisdiction to hear IP criminal cases, establishment of specialized IP appellate courts, etc. Also, there are still many problems and challenges for China’s IPR protection. China is still on the US 301 Watch List, and counterfeiting is still rampant. Nonetheless, from the continuous improvement of the IP legal system, we can see the Chinese government’s strong determination as well as its unremitting efforts in strengthening IPR protection, and we expect that the legal environment in China will continue to evolve in the right, positive direction in the next few years. We are after all only 5 years away from 2020, by which time China wishes to be in a position to say that it is a knowledge based economy, and no longer the world’s factory.
Ai-Leen Lim, CEO and Principal Counsel, AWA Asia