Kong Xiangjun Leaves Supreme People’s Court and Enters Academia

 

Chinese and Western media have reported that former Supreme People’s Court IPR Tribunal Chief Judge Kong Xiangjun and former Deputy Chief Judge of the SPC’s first Circuit Court has been dismissed from his work at the SPC.  Shanghai Jiaotong University, Koguan Law School also announced on September 7 that he would be joining their faculty.  

Kong served nine months on the circuit court, when he was dismissed from that position by the NPC in 2015.   He was dismissed from his SPC positions as both a trial judge and a member of the adjudication committee on September 3, 2016 by at the 23rd meeting of the Standing Committee of the 12th NPC.  There had previously been rumors that Kong was going to leave the court when he served on the SPC’s circuit court, which he denied.

Kong pursued his Ph.D. under Jiang Ping 江平 at the Chinese University of Political Science and Law.  He also served as Deputy Chief Judge under the Administrative Tribunal of the SPC, deputy chief judge of the civil tribunal, and as Deputy Party Secretary in Sichuan in 2014.  Among his many honors, Managing IP nominated him to the 50 Most Influential People in IP in 2010 and 2011.

Owing to his work in the fair trade division of SAIC prior to entering the court, Kong also had an interest in unfair competition and antitrust matters, and was an example of the many of officials in China who worked on unfair competition and IP issues at different stages of their career.  Kong has also authored several books including on contract law, antiunfair competition law, trade secret law, the TRIPS Agreement, and trademark law.

Specialized IP Courts Established in Beijing, Shanghai and Guangzhou; Song Xiaoming New Chief IP Judge

According to Xinhua, on August 31, the NPC passed legislation establishing specialized IP courts (http://news.xinhuanet.com/politics/2014-08/31/c_1112298943.htm) (“Decision of the NPC Standing Committee on Establishing Specialized IP Courts in Beijing, Shanghai and Guangzhou”)

As indicated, the courts are to be established in Beijing, Shanghai and Guangzhou.    Some basic aspects:

1.  The types and numbers of cases are to be decided by the SPC

2.  The court will hear technically complex first instance civil matters and administrative appeals (patents, technical trade secrets, plant varieties, semiconductor layout designs, etc.).

3.  The Beijing IP court will hear first instance appeals of validity / invalidity decisions of State Council IP agencies (patent office, trademark office, etc.).

4.  The courts will have cross-territorial jurisdiction for the types of  cases determined by the SPC noted  in the first paragraph above within three years.

5.  The court will also hear appeals from first instance trademark and copyright cases that originate at the basic level court in its municipality.

6.  Appeals of first instance decisions of the specialized IP courts will go to the high court of the province or city where that court is located.

7.  The specialized IP courts will be supervised by the SPC, the local high court and, “according to law”, the procuratorate.  Note that  no specific procuratorate – national or local is indicated.

8.  The President ( 院长) of the local IP court will be decided  and appointed by the local people’s congress.

9.  The Vice President of the court, chiefs of tribunals and adjudicating judges will be decided by the President and subject to appointment by the local people’s congress.

10.  The SPC will report on the implementation of the IP courts to the National Peoples Congress three years from now.

11.  The specialized IP courts are established as of August 31, 2014.

There are clearly some additional details and kinks to be ironed out.  For example certain copyright cases can be as technologically complex as patent cases;  there is no legal definition of “technical” trade secret as opposed to trade secrets involving business information; having the heads of these specialized courts be appointed by local people’s congresses may also continue to result in significant local protectionism; cross border jurisdiction for first instance cases for the courts could also result in cross border jurisdiction of the local high court, which could also increase local protectionism.  As I have noted several times before, I am unclear if anti-monopoly  cases qualify as “技术秘密等专业技术性较强的” (technologically complex, technically specialized) cases.

It  also appears likely to me that these courts would also be first instance courts for trademark and copyright cases which involve foreigners.  Such cases are typically now filed in the intermediate court or higher.  The NPC decision notes only that the specialized courts however have jurisdiction over appeals from the basic level courts which heard trademark and copyright cases.  As foreigners do not file cases in the basic courts, the specialized IP courts may be their courts of first instance.   知识产权法院所在市的基层人民法院第一审著作权、商标等知识产权民事和行政判决、裁定的上诉案件,由知识产权法院审理.  One question that arises is whether these courts would then also have cross border jurisdiction – which could then make them an effective tool in dealing with cross border counterfeiting and piracy involving foreigners and others.

The decision does further commit Beijing city to hearing administrative and civil IP cases in one specialized court, which is likely a good development for foreigners who bring many administrative cases.   If the Beijing IP court were granted jurisdiction over all cases where there is a validity challenge to a patent or trademark anywhere in China,  it could also result in a significant efficiency in the Chinese system.

These first instance specialized courts for technically complex cases will still be subject to review by at least one, possibly two appellate courts.  In this respect, the reform may be less like the Court of Appeals for the Federal Circuit, which established one national patent appellate court.  Rather, it appears to mostly be a reform of first instance adjudication, which might include consideration of venue, jurisdiction, consolidation of cases and further training of judges.

In a contemporaneous development, according to the People’s Daily (http://rmfyb.chinacourt.org/paper/html/2014-09/01/content_87088.htm?div=-1), Kong Xiangjun孔祥俊 is no longer head of the No. 3 (IP) Division of the SPC.  He has been replaced by Song Xiaoming 宋晓明, formerly chief judge of the No. 2 Civil Division.  Kong had  reportedly been scheduled for promotion and was working in SIchuan for the past several months.  It is unclear to me where Kong is next headed.