China: Case Guidance System And Stare Decisis Principle In IP Cases

Last Updated: 2 November 2016
Article by Gang Hu and Xiaomeng Dong

In April of 2015, the Supreme People's Court set up the Research Center (Beijing) on Case Guidance System in Intellectual Property Cases in the Beijing Intellectual Property Court, to explore the establishment of a case guidance system with Chinese characteristics relating to intellectual property cases. The legal sector has been calling for many years for a case guidance system and the stare decisis principle, or doctrine of precedent, to be introduced. The case guidance system and the stare decisis principle will fundamentally influence the trial of intellectual property cases and intellectual property practitioners need to be aware of the ramifications.


The case guidance system began with the 'Provisions of the Supreme People's Court on Case Guidance' issued in November of 2010. On June 2, 2015, the Supreme People's Court issued 'Regulations for the implementation of the Provisions of the Supreme People's Court on Case Guidance'.

Related contents of the case guidance system include: guiding cases issued by the Supreme People's Court shall be referred to by people's courts at different levels when making judgments in similar cases. When referring to them, the guiding cases shall be cited as adjudication reasons, but shall not be used as the adjudication basis.

From 2012 to now, the Supreme People's Court has issued in 12 batches 60 guiding cases including 10 guiding cases for intellectual property. These 10 intellectual property guiding cases are virtually binding on courts at different levels all over the country in ruling in similar cases. In fact, these 10 guiding cases are inadequate in number to meet the actual demands in ruling on those various intellectual property cases that are developing continuously.

To improve the quality and effectiveness of rulings, and to solve the problem of inconsistency between lawsuit, examination and judgment, the Beijing Intellectual Property Court has been intensively exploring the 'Consistence Criterion among Lawsuit, Examination and Judgment'. One of the six principles of this consistence criterion is the stare decisis principle.

Related contents of stare decisis principle include: the adjudicate documents that have become effective are the precedents that shall be followed and shall be binding virtually on Beijing Intellectual Property Court and the lower-level courts within its jurisdiction.

At the China Intellectual Property Forum on September 19, 2015, President of Beijing Intellectual Property Court, Chi Su, pointed out that it welcomed lawyers to provide precedents as references for judges. In 2015, one of the innovative measures taken by the Beijing Intellectual Court in hearing cases was the citing of precedent cases as statement reasons for adjudication. In this case, Beijing Intellectual Property Court, citing the understanding of "literal interpretation" in Supreme Court Mintizi (2009) No. 20 --- A Dispute of Invention Patent Infringement, pointing out that in respect of scope of protection of patent right, the supreme court's identifications in civil proceedings and definition on close-ended or open-ended claim in administrative proceedings still are referable. Therefore, Beijing Intellectual Property Court innovatively applied the reasons in the Supreme Court's civil proceedings to administrative proceedings. Furthermore, in this case, the identification conclusion in the Beijing Higher People's Court Zhongzi (2011) No.607on administrative dispute over the invalidity of invention patent right were also referred to, which identified that interpretation function of instruction manuals can be used in determining whether the disputed claim is open-ended or close-ended.


In China, case guidance system and stare decisis principle are both on the premise of statutory law, the function of which is to correctly interpret and apply the law. So, now as systems of law application they have great significance.

Uniformity in the application of law is an indispensable part of the judicial judgment in China. In judicial practice, however, there exist differences in its application and "similar cases different judgments", which gives rise to the public questioning the credibility of the judicial system. In intellectual property cases, the case guidance system and stare decisis principle are a basic method to solve the problem of "similar cases different judgments".

Under the situation of complexity, unexpectedness and volatility of intellectual property disputes in the era of transformation, the hysteresis of statutory law appears especially prominent. Case guidance system and stare decisis principle are an effective means to solve the hysteresis issue of statutory law.

If the case guidance system is adopted, a court will be better able to handle similar cases. It may well follow a simplified procedure and take the principle of "like case, like treatment", which doubtlessly will save judicial resources and raise the efficiency in making judgments.

Existing Issues

Case guidance system and stare decisis principle is an important judicial reform to the intellectual property practitioners. Currently, the following issues existing in case guidance system and stare decisis principle require of further research and exploration:

  1. Intellectual property attorneys cannot raise many guiding and precedent cases because Chinese lawyers are used to statutory law and lack of thinking by case and are not good at treating current cases in combination with precedents.
  2. The critical issue in implementing case guidance system and stare decisis principle lies in the judgment on "same case or similar case". It requires the judicial and legal sectors to undertake further discussion and research as to how to understand "same case or similar case".
  3. Currently, it is only the Beijing Intellectual Property Court which has expressly raised and has been exploring the stare decisis principle. Whether stare decisis is adopted by intellectual property courts of higher levels (for example, the intellectual property appeal court that may be established) is now highly anticipated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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