China: IP Appellate Court In China

Last Updated: 5 November 2018
Article by Rishabh Tripathi

In 2008, China laid down some basic guidelines for IP protection and a procedure for establishing centralized jurisdiction over some hi-tech cases, particularly patent litigation. Since, the issuance of the IP strategy, there has been lot of developments made to the Chinese IP judicial system including the establishment of specialized IP courts in late 2014 in Beijing, Shanghai and Guangzhou. In early 2017, China has established four new specialized IP tribunals in Nanjing, Suzhou, Chengdu and Wuhan as a step towards protection of Intellectual Property in China. The three specialized IP courts are progressively aggressive in terms of granting provisional measures, awarding increasingly higher damages, taking stricter judicial review of administrative decisions, piloting a precedent system etc. There has been intense discussions on establishing a national IP appellate court in China since the opening of specialized IP courts in 2014. China decided to carry out number of judicial reforms to strengthen the protection of IP rights and came out with an amendment for the establishment of the new IP appellate Tribunal.

The standing committee of National People's Congress – China's top lawmaking body - is reviewing the proposed amendment to its court organizational law that would create an Intellectual Property Tribunal within the Supreme People's Court (SPC) to serve as a national IP appellate court. This move will pave the way for the Supreme Court to hear appeals from specialized IP courts in Beijing, Shanghai and Guangzhou, as well as other intermediate level courts. The decision would authorize a centralized body in Beijing to hear appeals from both civil and administrative cases from all over china. The SPC IP Tribunal will look after complex civil and administrative patent cases with an objective to unify validity and infringement adjudications improve case efficiency and quality and improve judicial protection of IP. The concept of specialized IP tribunals is not new. Prior to china, United States and countries in European Union already have appellate level courts with the jurisdiction to hear patent infringement cases.  Through the establishment of specialized IP tribunals, china has taken a positive step towards centralize jurisdiction over patent cases, improve the quality, efficiency and consistency of IP adjudications.

According to the proposed draft, the new body within the SPC will hear appeals from both civil and administrative matters in the following areas:-

  • Decisions of the Beijing IP court in administrative matters related to patents, trade secret, IC design, new plant species, software and antitrust, including appeals against Patent Re-examination Board (PRB) and patent office decisions.
  • First instance decisions in civil matters related to invention and utility model patent infringement, new plant species, IC design, trade secret, software, and anti-trust made by specialized IP courts and intermediate courts can be appealed to the SPC.

The purpose of establishing IP appellate court is to improve IP protection for domestic and international enterprises, to provide better and more experienced judges to handle patent and trade related cases, improving the legal environment for technological innovation and in particular, to ensure consistency in the decisions made by the IP courts. According to the draft, the Supreme Court will be the appellate court after Beijing IP court reviews the PRB decision in patent prosecution cases. Also, the matters related to patent infringement, trade secret, software and antitrust matters will be handled by IP courts and intermediate courts and is no longer be appealed to higher people's court at provincial level. Before the IP appellate court, the Beijing IP court exercise exclusive jurisdiction over appeals from administrative decisions on validity of patents and trademarks by the PRB. Earlier, the Beijing High People's Court hears the appeal from the judgements made by the specialized IP courts, specialized IP Tribunals and general courts concerning patent infringement with no uniform applied mechanism to guarantee the appeal proceedings. The establishment of the IP appellate tribunal is an experiment conducted on the "three-in-one" adjudication for civil, administrative and criminal IP cases under a single tribunal.

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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