- China’s cabinet issue new policy initiatives on reforms of IP judiciary systems
On February 27, 2018, the top policy-making body of China (General Office of the Party and General Office of the Council) issued its policy roadmap, entitled “Opinions on Several Issues regarding Strengthening Reform and Innovation in IP Trial” (“Opinions” hereafter). The Opinions set forth the basic guidelines, principles, reform targets and critical measures for reforms and innovations in IP trial. The key points are summarized below.
- Improve IP litigation system: The Opinions propose several measures to reduce the burden of proof to be borne by the IP owners, and also propose determining damages mainly based on compensation and with punishment as a supplement. In addition, the IP case guidance system will be improved.
- Strengthen IP Judicial System: a national IP appellate hearing mechanism is to be established and more specialized IP venues are to be set up
- Strengthen the body of jurists: The Opinions propose picking IP judges from law-making staff, lawyers and legal experts. In addition, the Opinions propose strengthening capacity building of technology investigation officers and making rules for the admission of technology investigation comments.
In addition, during a press conference, China’s leading IP jurist and Supreme People’s Court Vice President Tao Kaiyuan 陶凱元 commented on the Opinions. Justice Tao again emphasized again the role of judicial protection of IP rights (Justice Tao’s prior comments on this is reported here). She announced that 2017 saw a 40% jump in IP-related litigation in the country. The number for new first-instance cases for all categories of intellectual property rights nationwide was 213,480. Justice Tao did not provide an overall number of cases involving foreign parties, but she did noted that on average, foreigners are parties in 20% of all cases, a number that is significantly higher than official statistics on foreign-related cases (涉外案件). That number is even higher Beijing IP Court, where up to 30% of cases are foreign related. Justice Tao said that judicial authorities strive to make Chinese courts preferred venues for international IP disputes which are trusted by litigants. Justice Tao also noted that Chinese companies face problems overseas, such as at trade fairs (note that the topic of US trade fair enforcement, which often involves Chinese defendants is the subject of two forthcoming articles by Prof. Marketa Trimble and a forthcoming conference to be held in October 2018 at University of Nevada Las Vegas). More comments on the Opinions are available here.
On March 2, the Zhengzhou Expanded Intellectual Property Tribunal (知识产权法庭) in Henan Province was established. Another two same kind of tribunals: Tianjin and Changsha were also established past week. Up to this point, all 15 expanded intellectual property tribunals (知识产权法庭) in Zhengzhou, Tianjin, Changsha, Xi’an, Hangzhou, Ningbo, Jinan, Qingdao, Fuzhou, Hefei, Shenzhen, Nanjing, Suzhou, Wuhan and Chengdu have been set up, together with the three specialized IP courts (知识产权法院) in Beijing, Shanghai and Guangzhou, forming a new “15 + 3” intellectual property protection program in China. However, those expanded intellectual property tribunals still need to go through legislation process to become free standing specialized IP courts, which had not been completed thus far.
Categories: China IPR
Professor Cohen, Mark, Really great summary. How do you evaluate this in the context of President Xi removing the Deng Xiaoping term limits on a President that were expressly adopted to avoid another “great leap forward” or “cultural revolution?”
Jerry Cohen was interviewed on BBC recently and gave indirectly a partial response to this question. One can certainly see the removal of term limits as inconsistent with rule of law. Indeed the paradox of recentralization and rule of law has been an ongoing contradiction for some time. One response might be to say reforms as long as it doesn’t challenge the party/center. Another is that Zi left a lot of enemies with his anticorruption efforts, and term extension could be an act of self preservation as well as a commitment to legal reform. Still another view is that IP courts are a wholly technical matter which has little relevance to the issue…at least for some observers (not me).