Tudou Encounters a “Hot Potato” In Distributing A “Bite of China”

Image

From April this year, the Supreme Court launched started releasing “model cases” (典型案例) in order to assist the courts and public to better interpret the law.

On June 23, 2014 the Supreme People’s Court released five “model cases” decided by the lower courts, which for the first time included an IP-related case, CCTV International [央视国际网络有限公司] vs. Shanghai TuDou Network Technology Co., Ltd. [上海全土豆文化传播有限公司]. These model cases, as I have previously blogged are an effort to instruct the lower courts and the public on how IP cases are adjudicated, and are an effort to establish a kind of “case law with Chinese characteristics.”  The case has been briefly discussed by Jerry Fang at the Supreme People’s Court Observer website.

 “A Bite of China” is a food documentary.  It was filmed by CCTV. It was first broadcast in May 2012. One week after broadcast Tudou.com offered a link to watch the video on-line. CCTV thereafter sued Tudou for damages and reasonable costs.

The Shanghai Minhang District People’s Court determined that the action of the defendant constituted infringement of the right of communication through information networks (the “making available right” in other jurisdictions).   In particular, the court relied on Article 3 of the 2012  Judicial Interpretation on on-line infringement [The Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks]. In this case, the defendant provided the online on-demand service of the infringed work to the public and allowed users to watch the asserted work in their personal selected time.

Tudou (which means potato in Chinese) argued that it only provided space storage services and that the asserted work were uploaded by the network users.  However, it was not able to provide evidence to illustrate who was the actual person to upload the videos, so the court did not find this argument to be credible. In regard to the economic loss claimed by the plaintiff, since the plaintiff couldn’t submit the evidence about benefits from the infringement of the actual loss suffered by the defendant, the court considered the popularity of the asserted work, that the defendant directly provided the asserted work to view online, that the subjective fault of the defendant was large, and the infringement was occurred during the “hot” [热播] broadcast period for the TV show. The court also looked to Tudou’s business size, business model, and the nature of the its website to demonstrate the effect of the infringement.

According to the judgment of the first instance CCTV International filed a lawsuit after it obtained notarized evidence of the infringement. Thereafter, Tudou deleted the asserted video on its website. It appears that CCTV International did not give an opportunity to give Tudou time to take down the video before filing the lawsuit.  The court instead relied upon the fact that Tudou, a sophisticated company, uploaded the content itself, and that the content was “hot”. Under Article 10 of the 2012 Judicial Interpretation on on-line liability, where there is such “hot” content, knowledge of infringement can be imputed:

Article 10    Where a web service provider, when providing web services, by establishing charts, catalogues, indexes, descriptive paragraphs or brief introductions or other ways, recommends hot movie and television programs which can be downloaded or browsed or are otherwise accessible by the public on its webpage, the people’s court may decide that it should have know that its web users are infringing upon the right of dissemination through information networks.

第十条网络服务提供者在提供网络服务时,对热播影视作品等以设置榜单、目录、索引、描述性段落、内容简介等方式进行推荐,且公众可以在其网页上直接以下载、浏览或者其他方式获得的,人民法院可以认定其应知网络用户侵害信息网络传播权。

This case appears to be directed to the application of what constitutes “hot” content according to the 2012 Judicial interpretation, as well as related issues involving application of the JI.  It may also be timed to coincide with the current comment period for the recently released draft of the State Council Legislative Affairs Office of the proposed revisions of the Copyright Law.  Article 73 of that draft outlines addresses “actual” or “constructive” knowledge of infringement which can result in liability for an ISP, without specific reference to any “hot” content.

After some searching, it appears that this case is not yet available on line in its second instance decision.   This blog has therefore relied on the press release and first instance decision.  If a reader has a copy, please post it or email me at chinaipr@yahoo.com. 

These cases show that China is laudably utilizing its extensive IP case adjudication experience to guide the judiciary and is therefore evolving its own approach towards case law.  However, if the cases are to have an  even greater impact, it is also important for the case to be published or made readily available at least by the time it is listed as a model case.

The SPC’s “Top Two” Dueling IPR Cases

The Supreme People’s Court (SPC) recently released its ten top cases for IP week at the end of April.  Perhaps the most striking was that the high profile trade secret case in Shanghai that was lost by the SI Group of Schenectady, NY.  Here is a rough translation of the summary of that case by the SPC:

“Fifth, the dispute involving resin patent infringement trade secrets. SI Group and SI Chemical (Shanghai) Co., Ltd. and Hua Qi (Zhangjiagang) Chemical Co., Ltd., Xu Jie appeal against a trade secret dispute.

[Summary] SI Group and SI Chemical (Shanghai) Co., Ltd. jointly claimed that technical information regarding SP-1068 were trade secrets of the SI Group that had been taken over by the defendant Xu Jie, who was formerly an employee of the SI Chemical (Shanghai) Co. When Xu Jie resigned from that company to work at the defendant Hua Qi (Zhangjiagang) Chemical Co., Ltd. (“Huaqi”), Xu Jie allegedly disclosed the two plaintiffs’ trade secrets to Huaqi which used them. The two plaintiffs requested the court to order the defendants to stop the infringement, eliminate the effects, and compensate for the economic loss of 2 million RMB.

The Shanghai Second Intermediate People’s Court entrusted a technical appraisal expert which concluded that that technical information of Huaqi on production of SL-1801 product, as well as patents involved, are not the same substantive technical information and dismissed the plaintiffs’ claim. The two plaintiffs refused to accept the appeal. The second instance court dismissed the appeal and upheld the original verdict.

[The meaning of this typical case] In the trial of a trade secrets infringement case, the court must not only safeguard the rights of people who are claiming trade secret protection, they should also pay attention to the balance between the interests of the parties, regulate fair competition between the parties, and maintain the market’s legitimate order.  In the course of comparing the technologies in the current case, the court of first instance conducted a rigorous, regularized technology appraisal process, and the appraisal body issued a highly professional appraisal report.”

To me, this was one of several “dueling” trade secret cases in the past several years – some of which involved civil, criminal or administrative litigation.  Some also involved high profile political attention, and some also involved conflicting decisions between China and foreign countries.  In this case, there are several “dueling” elements.

The SPC’s assessment of the technical appraisal is itself subject to some dispute in this matter.  According to press reports as well as company announcements, a prior technology verification effort of the trade secrets in China, which was conducted at the behest of the police, had confirmed that the technical information was confidential in nature and that there was a similarity between the plaintiff and defendants’ manufacturing processes.

Another, more important, “dueling” element is that the  US International Trade Commission (the “Commission”) reached a contrary decision to the Chinese courts.  As stated at page 46 of the eighty-eight page Commission decision: “This is classic misappropriation of trade secrets, with copying down to the thousandth decimal place.“ (page 46),  The Commission  also determined that the public interest was not adversely affected by this remedy, and that principles of comity did not preclude it from issuing a decision that is contrary to the holding of a Chinese court (http://www.usitc.gov/press_room/documents/337_849_ID.pdf).

A third dueling element was in the media.  The Chinese press reported that the USITC had found no infringement, when in fact the USITC had not altered its finding of infringement but instead altered the remedy.  The Commission determined that it would issue a limited exclusion order of the infringers’ products, rather than a general exclusion order. Specifically, the Commission determined that the following respondents were in violation:

Precision Measurement International LLC of Westland, Michigan; Sino Legend (Zhangjiagang) Chemical Co., Ltd. Of Zhangjiagang City, China; Sino Legend Holding Group, Inc. of Kowloon, Hong Kong; Sino Legend Holding Group Ltd. of Hong Kong; Red Avenue Chemical Co. Ltd. of Shanghai, China; Shanghai Lunsai International Trading Company of Shanghai City, China; Red Avenue Group Limited of Kowloon, Hong Kong; and Sino Legend Holding Group Inc. of Majuro, Marshall Islands.

The Commission issued a “limited exclusion order for a period of ten (10) years prohibiting the unlicensed importation of rubber resins made using any of the SP-1068 Rubber Resin Trade Secrets that are manufactured by, for, or on behalf of violating respondents or any of their affiliated companies, parents, subsidiaries, licensees, contractors, or other related business entities…

This was hardly the finding of “no infringement” that the Chinese press claimed.

Some explanation of the political importance of this case may also be found in the next “top” case (no. 6) listed by the SPC, the Shenzhen Intermediate Court decision in Huawei vs InterDigital, involving a FRAND license.  Unlike the SI Group case, the SPC did reference the initiation of the ITC action by InterDigital as part of its description of the background of this case.  In the Huawei case, as I previously noted, the Shenzhen Intermediate Court viewed the filing of a USITC action where there was a corresponding FRAND commitment as an actionable violation of China’s antimonopoly law.    Both the SI Group and Huawei cases involved concerns about the market: the court viewed the SI case as regulating fair competition, while one of the Huawei cases involved a claim under China’s antimonopoly law.  To a foreign observer, these two cases suggest that the Chinese courts may be sending a decision about its resolve to fight back against Commission 337 determinations involving foreign companies.

Why then the decision by the SPC to list these two cases as “top 10” cases?  Both Susan Finder in her Supreme People’s Court Monitor blog hand I have previously written about the development of guiding and model cases in China.  Publishing of these cases may also be intended more for pedagogical purposes than to bind the courts.  In 2013, these two cases where Chinese courts took decisions adverse to ITC decisions constituted twenty percent of the top 10 cases published by the court.  This can be compared to the less than two percent of Chinese IP cases that had a foreign element in 2013 – in essence, these SPC is calling attention to high profile statistical outliers.  The cases could suggest a disproportionate interest in matters where foreign companies are defendants, where IP “abuse” is alleged, where market factors need to be balanced, or where there are concurrent Commission actions.   Or are these two “dueling cases” just coincidences?

Revised with minor stylistic changes: March 14, 2019

Image

US-China IP Cooperation Dialogue Report Released

The “US-China IP Cooperation Dialogue Report” was released last week. The Report was prepared by experts from both the US and China, including co-chairs Professor Liu Chuntian of Renmin University and Joseph Papovich, former Assistant US Trade Representative. I was an also a member of the expert committee, first as an academic with Fordham Law School, and later as an advisor when I returned to USPTO, in an otherwise private sector initiative.

The Report reflects the consensus reached during several days of meetings among this experienced team. Here are some of its suggestions:

  1.  Civil Enforcement: the Report urges greater use of precedents through a guiding case system, experimenting with amicus briefs for important cases, expanding evidence preservation and preliminary injunctions, and greater civil deterrence in damage awards.

  2. Criminal Enforcement: the Report calls for adjustments to the criminal enforcement system and an expanded and stable role for criminal IP enforcement.  The US experts sought greater clarity over “for profit” requirements in criminal IP convictions, while the Chinese side believed that current judicial practice will ultimate reduce these difficulties.  Both sides agreed that criminal enforcement should be directed towards repeat offenders, large scale criminal activity, and cross-border criminals.  In addition, officials should be encouraged to increase the volume of criminal prosecutions.  Authorities should also consider plea bargaining and proportional criminal fines, as well as criminal settlement and victim-offender reconciliation.  Victims’ compensation (fudai) claims should also be allowed.  Specialized IP enforcement teams and specialized prosecutors were suggested, as well as clearer IP criminal investigation guidelines.

  3. Customs: Greater support of Chinese customs, with more resources, and more engagement with foreign countries.

  4. Copyrights: The experts supports the 2012 Supreme Peoples Court Judicial Interpretation on intermediary liability and commended the court’s openness in accepting outside comments and evaluating foreign practices.  Both sides also encouraged foreign companies to more aggressively use legal remedies to stop infringement.  While China has made significant improvements in end user piracy, the necessity of criminal liability was also underscored.  The experts also believed that live sports programming should be protected under China’s copyright law, and expanded protection should be afforded to technological protection measures.

  5. Trademarks: The experts expressed support for SAIC’s efforts to address online sales of counterfeit goods, and urged the SPC to consider leveraging its experience in dealing with secondary liability in the copyright context to the trademark context, in order to encourage more cooperation between platform owners and brand owners.  The experts also urged the CTMO to adhere to the principle of good faith TM registrations to deal with squatting, and to expand cooperation with express mail services to deal with global counterfeiting organizations.

  6. Patents: The experts agreed that the courts should continue to play a central role in adjudicating patent cases.  The experts also suggested that China should consider centralized jurisdiction over patent cases to ensure specialization and predictability.  If a centralized patent court cannot be established, the experts considered that the SPC might wish to reduce the number of courts that hear patent litigation cases from the current 89.  The experts also expressed their concern about the low rate of injunctive relief for invention patent cases, and consider means of improving evidence collection, particularly in process patent cases.  The experts also discussed Article 26.3 of the Patent Law (enablement), and problems with retroactive application of examination guidelines and restricting data supplementation.  In evaluating appeals from the PRB to the Beijing courts, some experts also pointed to low reversal rates by the courts, and too much involvement by PRB officials in the court’s decision making process, which can impair impartiality.  The experts also recommended a study on the impact of the short statute of limitations (two years) in China on protection of patent rights.  The Chinese side also thought that foreigners also need better protection and planning for litigation in China.

  7. Trade Secrets: The experts agreed that theft of trade secrets, whether the victims are foreign or Chinese, is “not tolerable.”   The experts further noted that trade secret theft “harms business value and destroys trust” and that trade secret cases can have a big impact on “sustaining the growth of R&D facilities and technological collaboration in China.”  The experts pointed out that parties in trade secret disputes need to be given a fair opportunity to discover key facts and to examine evidence.  Police officers should be able to conduct undercover investigations (Criminal Procedure Law, Art. 51).  Chinese experts also cautioned that criminal prosecutions may be abused and that in some cases the civil and criminal results of the same trade secret cases have had conflicting results.

This eight page bilingual Report is a very useful read for policy makers in the United States and China.  What is perhaps even more important is that it was a joint collaborative effort, which showcases the potential for future cooperation on IP policy efforts.

First Guiding Case on Intellectual Property

Stanford’s Mei Gechik reports through Don Clarke’s Chinalaw listserve that Stanford’s Guiding Case project has just made available an English translation of the first guiding case on intellectual property: Shenzhen Siruiman Fine Chemicals Co., Ltd. v. Shenzhen Kengzi Water Supply Co., Ltd. and Shenzhen Kangtailan Water Treatment Equipment Co., Ltd., An Invention Patent Infringement Dispute. (深圳市斯瑞曼精细化工有限公司诉 深圳市坑梓自来水有限公司、深圳市康泰蓝水处理设备有限公司 侵害发明专利权纠纷案 .  This is Guiding Case Number 20.  The English translation is here:  http://cgc.law.stanford.edu/guiding-cases/guiding-case-20.  The Chinese text is available here: http://cgc.law.stanford.edu/wp-content/uploads/2013/12/CGCP-Chinese-Guiding-Case-20.pdfThe case was decided on December 20, 2011 by the Supreme People’s Court and made a “Guiding Case” by the adjudication committee of the SPC on November 8, 2013.  For further information on this project contact: contactcgcp@law.stanford.edu.

 

 

 

IPR Model Cases: Part of the Long Journey towards IPR Case Law with “Chinese Characteristics”?

Image

Late last month the SPC published a list of eight model cases (Dianxing Anli,典型案例).  The cases highlight some important new trends in the court, and also suggest directions that the court is headed in with regarding to publishing cases.  Here are the cases and our analysis:

1.  Eli Lilly v. Huang Mengwei (黄孟炜) – preliminary injunction order for theft of trade secrets (Shanghai).  This case adopted provisions in the Civil Procedure Law Revision (effect Jan 1, 2013) making preliminary injunction orders available for all civil remedies.  The case involved the misappropriation of trade secret documents by a departing employee of Eli Lilly.  This summary is especially important as the case may not otherwise be available to the public due to its containing confidential information.  As noted elsewhere in this blog, the US-China Business Council, as well as other organizations and governments have placed pressure on China to improve its trade secret regime, including making provisional remedies available, as they are in other IP-related cases.  The Supreme People’s Court also issued a useful study on this topic. By disseminating this case, the court has assisted the public in understanding the basis of preliminary injunction order in trade secret matters and helped to address foreign complaints.

2.   Foshan Haitian Flavoring & Food Co., Ltd. (佛山市海天调味食品股份有限公司) v. Foshan Gaoming Weiji Flavoring & Food Co., Ltd. (佛山市高明威极调味食品有限公司) – trademark and unfair competition case. This case in Foshan, Guangdong involved misappropriation of the brand of the Haitian company, “Weiji” (威极).  Weiji Company, the infringer, used industrial brine in the production of soy source.  When this scandal was exposed, sales of Haitian Company, a household manufacturer of soy source and the lawful holder of the Weiji trademark, dropped dramatically. Weiji Company’s action was determined to be illegal under the unfair competition law and Weiji was obliged to change its company name.  Although Haitian failed to prove direct losses, the Court held the infringer to be liable for Haitian’s advertisement fee and other expenditures for eliminating negative effect of the scandal to minimize Haitian’s loss.  As in other IP-related cases, an exacerbating factor seems to have been consumer harm.  In addition, the case appears to be addressing problems of unfair competition/company name misappropriation, which has often been a difficult area in China’s IP regime.

3.  BMW v. Guangzhou Shiji Baochi Apparels Ltd.(广州世纪宝驰服饰实业有限公司) – trademark and unfair competition. According to Article 56 of the PRC Trademark Law, when the exact amount of the infringer’s benefits derived from the infringement and that of the loss caused by such infringement are hard to determine, the current ceiling for the compensation to the trademark owner is 500,000 RMB. However, in the BMW case, the Beijing High People’s Court upheld an award of 2,000,000 RMB in TM infringement damages due to the infringer’s apparent bad faith, the length and benefit of infringement, BMW’s renowned reputation and BMW’s efforts to eliminate the negative effect of this infringement. Moreover, the Court also punished the infringer with a 100,000 RMB civil sanction and gave a judicial suggestion to SAIC (State Administration for Industry and Commerce) for a nation-wide investigation of this infringement. This case is significant in part because of a more active role by the court to address willful infringement, which has been incorporated into China’s newly revised Trademark Law.  Moreover, the court is seeking to integrate both civil remedies and administrative/criminal remedies.  China’s courts have the authority, which is rarely used and which I have long advocated for, to refer matters to criminal investigation in appropriate circumstances.  This case may anticipate a more active role for the courts in addressing willful infringement.

4.  Zhuhai Geli Electrical Co., Ltd. (珠海格力电器股份有限公司) v. Guangdong Meidi Refrigeration Equipment Co., Ltd. (广东美的制冷设备有限公司) – presumption of infringement in invention patent litigation.  In this case, both parties are renowned Chinese electrical appliance enterprises. Geli claimed that the technological solutions applied in four types of Meidi air conditioners infringed its invention patent. There was no dispute that one of the four types of air condition infringed Geli’s IP right. The defendant failed to distinguish the remaining products with the infringing one.  The Guangdong High People’s Court shifted the burden of proof to Meidi and held the remaining three types of Meidi products to be infringing.

5.  Ashland Licensing and Intellectual Property LLC  (亚什兰许可和知识产权有限公司) v. Beijing  Ruishibang Fine Chemistry Technology Co., Ltd.(北京瑞仕邦精细化工技术有限公司) and Wei Xingguang – infringement of manufacturing process. While it is hard to prove infringement of a manufacturing process, Ashland, the patent owner, and its Chinese licensee secured 15,000,000 and 7, 000,000 RMB compensation respectively under the Court-hosted mediation.  In this case the patented manufacturing process is a method to produce a certain industrial chemical that has a specific customer group and is impossible to obtain from the open market.  The plaintiff had no access to defendants’ manufacturing process. However, considering that the main technical and management staff of defendant companies had had access to the patented manufacturing process as the licensee company’s former employees, Suzhou Intermediate People’s Court determined that the defendants production of that certain chemical constituted infringement based on a burden of proof reversal.

6.  Beijing Ruibang Yonghe Technology and Trading Ltd. (北京锐邦涌和科贸有限公司, Ruibang) v. Johnson & Johnson Medical (Shanghai) Ltd. and Johnson & Johnson Medical (China) Ltd.  As many observers know, many local IPR tribunals and the SPC IPR Tribunal are also authorized to handle antitrust cases.  This minimum resale price maintenance case is highlighted as the first anti-monopoly case under Chinese AML where plaintiff won and the first case in China that involved a vertical monopoly agreement. The plaintiff, a former distributor of J&J, won a bid at a price lower than the minimum resale price fixed by J&J in the distribution agreement. In response to plaintiff’s breach of contract, J&J terminated plaintiff’s distribution rights, cut further supply and refused to renew the distribution agreement. Plaintiff claimed that such price fixing provision violated the AML in respect of a vertical monopoly agreement. The Shanghai High People’s Court held J&J liable for the distributor’s normal revenue losses, 530,000 RMB.  The Count held that J&J’s minimum resale price provision excluded or at least restricted competition in relevant market, and that J&J’s actions were monopolistic in nature.  For watchers of how American companies fare in litigation in China, this case along with Huawei/Interdigital suggest that foreign companies may be a focus on AML investigations.  However the Eli Lilly and Ashland cases, amongst others, also demonstrate increasing success in IPR-related litigation by the same tribunals that hear IPR cases.

7.  Jiangxi Yibai Electronic Technology Co., Ltd. (江西亿铂电子科技有限公司) , Yu Zhihong, and others  – criminal trade secret case.  A 37,000,000 RMB penalty made this case the largest business information trade secret criminal case in China, and may be a harbinger of harsher punishment in this area. In 2011, one the defendants established a manufacturing company called Yibai along with several sales companies. These companies sold $7,659,235.72 of competing products based on misappropriated information from Saina Technology Co., Ltd. The prices and sales channels of these products were all set on the basis of Saina’s operational information that the four defendants obtained through their previous employment at Saina in violation of their non-disclosure duty. Zhuhai Intermediate People’s Court sent the four individual defendants into jail.  This case was also marked as a model for Guangdong province’s pilot program of intellectual property cases “three tribunals in one”, where civil, administrative and criminal IP jurisdiction are combined.

8.   Zong Liangui and Huang Li’an  and 26 other individual defendants – criminal trademark counterfeiting case.  In November 2007, the defendants founded a factory to manufacture and sell fake cooking oil with registered trademarks “Jin Long Yu”(金龙鱼) and “Lu Hua”(鲁花). Meanwhile, the factory was also involved in trafficking of counterfeit “Jin Long Yu” and “Luhua” labels. The remaining defendants included workers of this factory, who participated in such production knowingly and obtained illegal earnings, and retailers of the fake cooking oil.  [d2] This case in the Henan High People’s Court resulted in a total penalty of 27,040,000 RMB. The case also highlights the importance of piercing the corporate veil in criminal IPR matters, as well as the role of the combined civil/criminal/administrative IP tribunals in the courts.

While many of these cases are of great interest in their own rights, there also remains the broader question of what is the significance of the courts publishing cases?  For some time there has been interest among academics and business people in the United States in a greater adherence in China to case law.  There appears to be some interest in the court as well in having their cases to gain greater legal significance, beyond that of adjudicating the case in dispute.  Back in 1981, the National People’s Congress formally delegated the authority to the SPC and the Supreme People’s Procuratorate to promulgate Judicial Interpretations (JI) – to interpret laws in the course of their work.  As in traditional civil systems, Chinese courts are not supposed to interpret law; JI’s provide a basis for the courts to interpret laws in the form of a statutory type document, typically based on actual judicial experience.  However the tribunals in the SPC have not confined themselves only to JI’s to guide lower courts and help insure greater predictability in decision-making.

United States interest in Chinese case law has manifested itself in the “China Guiding Cases Project” underway at Stanford University.  The SPC’s guiding cases are intended to guide the courts in judicial decision-making in all adjudicated areas.  The advisory board of Stanford’s project includes several IP notables – including Chief Judge Kong of the SPC IPR Tribunal and Chief Judge Rader of the Federal Circuit.  The American Intellectual Property Law Association has a similar interest in model cases, with its China Precedents Project, in which “significant Chinese IP cases will be selected, reviewed, translated, commented on, and posted in a database available to AIPLA members.”  However, the application of cases in China’s judicial system remains controversial in light of the limitations places on the court in interpreting the law.

It is clear that the use of precedents in China at this time is quite different from the United States.  Among the most obvious reasons are that these cases are a small group selected by the courts themselves.   In the usual practice of courts, they are not to be cited.  Moreover, they are inferior to Judicial Interpretations.  The context of the release of these cases may also be important.  For example, these cases were released around October 22, by IPR Deputy Chief Judge Jin Kesheng (金克胜) at a press conference.   These eight cases follow relatively closely on the heels of  model criminal IP cases announced by the Supreme People’s Procuratorate in September.  These cases may also be read to suggest that the SPC Civil IPR Tribunal is not to be outdone by the Procuratorate, particularly as they have shown the importance of higher civil damages and punishments, successful experiments in combining civil, administrative and criminal cases in lower level courts, improvements in civil procedures, an enhanced focus for trade secrets, the use of burden of proof reversals for patent protection[d3] , and other issues that are of timely, and even international importance.

There are many other types of instructional IPR cases that national and local courts issue have published, typically around the time of IP week (around April 26) each year – leading one to wonder what the relative value of these different kinds of cases are.  For example, SPC or its IPR Tribunal now publishes “innovative cases”, “big cases” and “typical cases.” Some local courts also publish similar cases.  And of course, there are the SPC’s guiding cases. According to relevant guidance “Senior Judges Chat about the Chinese Characteristics of China’s Case Guidance System” (大法官畅谈中国特色案例指导制度) on the SPC’s website, the legal power of these typical cases is different from that of guiding cases. It is at judges’ discretion to decide whether or not to follow these cases or to take them as reference in trial. These typical cases have no express binding power.  Nonetheless, these Senior Judges point out that China is evolving its own approach towards the role of cases in guiding its judiciary.

If these cases are intended to be instructional in nature, I also wonder if the case summaries indeed correspond to the actual facts of the case, or are the facts selected to make the point clearer in light of China’s current needs.  If so, the use of exemplary cases would follow a long tradition in Chinese society including model workers, model party members, and perhaps dating back to Confucius, who looked to “rectify names” () and believed that the proper use of names would improve society: “When punishments are not properly awarded, the people do not know how to move hand or foot. Therefore a superior man considers it necessary that the names he uses may be spoken appropriately and also that what he speaks may be carried out appropriately.” (Analects, Legge, trans.)

Apart from this positivistic value, the cases may also present an opportunity for particular agencies to spotlight on their own accomplishments, such as the role of combined civil, criminal and administrative tribunals in these cases in these “typical” cases.  In light of their positivistic value, the case summary and its instructional nature may be of greater precedential impact than the case itself.  If however, their primary function is not to bind other courts.  Indeed, if they are not binding, it may be some time before Chinese lawyers are arguing before a judge about whether a particular case is “on point”, or can be “distinguished” like a common law lawyer.

Photo: Moot court before the Court of Appeals for the Federal Circuit at US-China Joint Adjudication Conference, May 2012 at Renmin University, Beijing.  The attorney representing the USPTO at this joint moot court was former Solicitor, now Judge at the CAFC, Hon. Ray Chen.

(rev. Nov. 13, 2013, Jan. 18, 2016)