When final, this JI will supersede prior JI’s involving preliminary injunctions in patent and trademark cases, which also served as reference for copyright matters. The JI also further solidifies the extension of the civil procedure law reforms involving provisional measures to trade secrets, while also clarifying its expansion to civil competition law matters. The JI may open up the possibility of greater use of the civil courts for antimonopoly law litigation.
“Action Preservation” measures in the draft include measures to require a party to act by the court, or to prohibit them from acting. The draft JI specifically clarifies the circumstances by which licensees (exclusive or non-exclusive) may seek injunctive relief. The time frame for rendering a preliminary injunction decision is a non-emergency matter may be as long as 30 days. The draft JI also details such aspects of preliminary injunctions as the jurisdiction of the court, what constitutes “irreparable harm”, nature of guarantees, handling of appeals of cases and handling of oppositions to provisional measures, the effect of changed circumstances, fees, and other matters.
On February 26th, the Supreme Peoples Court released its fourth five year reform plan (2014-208) (最高人民法院关于全面深化人民法院改革的意见) (dated February 4, 2015). Intellectual Property is the third item listed of sixty-five action “Key Tasks in Deepening Reform of the Courts” (全面深化人民法院改革的主要任务 ) Here’s what the Court says
推动设立知识产权法院。根据知识产权案件的特点和审判需要，建立和完善符合知识产权案件审判规律的专门程序、管辖制度和审理规则。Promote the Establishment of Intellectual Property Courts. Establish and improve specialized procedures that fulfill the need for intellectual property adjudication, jurisdiction and trial rules, in accordance with the special needs of intellectual property case adjudication.
This “task” supports the specialized procedures now in place at the IP courts, including the use of technology assessors, as well as the unique jurisdiction of those courts. The five year reform also extends beyond the three year trial period of the courts, which suggests that deeper/more durable reforms may be in the works.
There are also numerous other provisions in this plan that could affect IP adjudication, including provisions on transparency, administrative appeals, statistics, court management, petitioning, independence, supervision, as well as on international judicial assistance (No. 26). The draft also calls for the adoption of an international criminal judicial assistance law, which might be useful in dealing with transnational IP crime.
Thanks to Susan Finder for spotting this new development.