19.6% of Admin Decision Canceled by Beijing IP Court – Report on the Work of Intellectual Property Courts
19.6% of Admin Decision Canceled by Beijing IP Court – Report on the Work of Intellectual Property Courts
Editor’s note:
During the plenary meeting held by the 29th Session of the 12th National People’s Congress Standing Committee (NPCSC) on the afternoon of August 29, Report on the Work of Intellectual Property Courts by the Supreme People’s Court (SPC) was delivered.
According to the SPC President Mr. Zhou Qiang who released the report, 46,071 cases have been received, among which 33,135 have been concluded, by the three IP Courts in Beijing, Shanghai and Guangzhou.
For the Beijing IP Court, it has trialed 18,732 administrative cases filed for authentication of rights arising from trademark and patent licensing. Among 11,046 cases concluded, 2,166 ended up with the Court’s judgment to cancel the sued administrative decision, making the percentage an impressive 19.6%.
See full text of the Report below::
Supreme People’s Court
Report on the Work of Intellectual Property Courts
At the 29th Session of the 12th National People’s Congress Standing Committee, August 29, 2017
By SPC President Zhou Qiang
Esteemed members of the National People’s Congress Standing Committee:
On behalf of the Supreme People’s Court, I hereby report to you on the work of Intellectual Property Courts in the recent three years for your deliberation and approval.
To establish IP Courts is an important move to uphold and practice the spiritual fortune conceived at the 3rd Plenum of the 18th Central Committee of the Communist Party of China (CPCCC). It is also profound for upholding and implementing the national strategies of intellectual property and innovation-driven development, building and improving a judicial system with Chinese characters, and further strengthening judicial protection of intellectual property.
On June 6, 2014, Plan to Establish Intellectual Property Courts was approved at the 3rd meeting of the Central Leading Group for Comprehensively Deepening Reforms held by General Secretary Xi Jinping. On August 31, 2014, Decision on the Establishment of Intellectual Property Courts in Beijing, Shanghai and Guangzhou was approved during the 10th Session of the 12th NPCSC.
For three years, the SPC and the three local Higher People’s Courts have been guiding the IP Courts to follow and practice requirements of the Plan and the Decision, under the leadership of the CPC’s Central Committee closely united around Comrade Xi Jinping, the supervision of the NPC and its Standing Committee, and the support by relevant bodies of the central government and municipal/provincial CPC committees, People’s Congresses and governments of Beijing, Shanghai and Guangdong. Thanks to efforts made by all parties, work in all aspects has witnessed substantive progress and smooth improvement.
- Overview of Work and Results
The SPC has attached great importance to setting up IP Courts, and thus guided local Higher Peoples’ Courts in Beijing, Shanghai and Guangzhou to vigorously press forward the preparation work. Meanwhile, local CPC Committees upgraded their supervision by forming leading groups. They were in charge of making working plans, selecting locations, and constructing facilities. In addition, internal bodies of the Courts were designed and committees for selection of presiding judges were organized in accordance with the principle of judicial system reform.
The long expected IP Courts were eventually unveiled in Beijing, Shanghai and Guangzhou respectively in November and December, 2014.
For a good start after establishment, the SPC stepped up its role in coordination and guidance by holding meeting after meeting to research on the work of IP courts for better deployment. It organized seminars respectively in Beijing, Shanghai and Guangdong, which gave birth to Guiding Opinions on Selecting and Appointing Judges for Intellectual Property Courts (for Trial Implementation), Jurisdiction of the Intellectual Property Courts of Beijing, Shanghai and Guangzhou over Cases, Outline of the Judicial Protection of Intellectual Property in China (2016-2020), Interim Provisions of the Supreme People’s Court on Several Issues concerning the Participation of the Technical Investigators of Intellectual Property Courts in Legal Proceedings, Guiding Opinions on the Selection of the Technical Investigators of Intellectual Property Courts (for Trial Implementation).
Three local Higher People’s Courts have also been generous to provide supervision, guidance and support.
Three IP Courts have strictly practiced justice, deepened judicial reform and improved the judicial personnel when implementing in all aspects the spirit conceived at the CPC’s 18th National Congress and the 18th CPCCC’s 3rd, 4th, 5th, 6th Plenums, and digging into and upholding the spirit delivered in General Secretary Xi Jinping’s series of important speeches, and New Ideas, New Thoughts and New Strategies on Governance. The IP Courts also takes on the mission to “make equity and justice felt by the people in every case” and put into practice the national strategies of intellectual property and innovation-driven development. Work in all aspects has thus delivered significant results.
1.1 We have improved the judicial level and given full play to judicial protection in securing IPR.
We have focused on trials to expand judicial protection of intellectual property. By unbiased and effective handling, infringement has been tamed and innovation-driven development has been promoted.
Three Courts have received 46,071 and concluded 33,135 cases up to June 2017. The numbers include 12,395 received and 8,247 concluded first-instance civil and administrative cases concerning quite complicated matters, such as patents, new plant species, layout designs of integrated circuit, technological know-how and computer software.
First, we have enhanced innovation via trials.
Totally 21,620 civil cases have been concluded.
Among those cases, 7,041 involve patents. Through legal handling of cases concerning high technologies such as unmanned aviation vehicles and 4G communication, and disputes over design patents such as which between M&G Stationery INC. and DELI Stationery, protection of core and cutting-edge technologies as well as design patents have been accordingly enhanced.
Trademark cases concluded have totaled 1,462. We rendered protection to domestic and foreign trademarks including “Lao Gan Ma” and “LV” by recognizing them as famous trademarks, so as to regulate the use and protection of time-honored brands and intangible cultural heritage, and penalize trademark infringement such as counterfeiting, squatting and imitation. It is conducive to implementation of brand development strategy.
Concluded copyright cases account for 11,664. By enhancing copyright protection during legal proceedings of cases such as iQiyi.com Inc.’s litigation against Huandian Technology Co., Ltd. over rights to internet dissemination, we were able to guide and guard cultural innovation with IP trials.
Cases involving unfair competition and monopoly account for 564. The IP Courts have been able to cultivate an unified while open, regulated while competitive and open market environment when settling significant cases over unfair competition such as the one brought by Yaoyu Culture & Media Co., Ltd. against Douyu TV.
11,113 administrative cases have been concluded to protect legal rights and interests of the administrative counterparts and regulate administrative enforcement involving intellectual property.
The Beijing IP Court has handled 18,732 and concluded 11,046 administrative cases filed for authenticate rights arising from patent and trademark licensing. 2,166 cases delivered judgments to cancel the sued administrative decisions. The IP Court has thus performed its role of judicial review and supervision over such administrative behavior.
Second, we have strived to solve issues such as that the cost is low for infringement while high for protection.
We built and developed the “Intellectual Property Judicial Protection and Market Value Research (Guangdong) Base” to delve deeper into issues such as compensation for infringement and step up penalty on such misconduct against IPR.
We increased the scale of monetary compensation pursuant to the laws. For severe infringement on trademark rights in bad faith, punitive damages will be adopted according to the laws. As for deliberate infringement and repeat offense in other fields related to IPR, the sized of compensation will be determined based on the involved market value. Infringers shall pay for their misconduct by taking on the cost for rights protection previously shouldered by the infringed who are entitled to sufficient compensation.
In the litigation over patent infringement against “USBKey”, the court of first instance fully supported the plaintiff’s claim for RMB49 million (approx. USD $7.5 million) in compensation. More significantly, it supported the claimed attorney fees of RMB1 million (USD $153,000) arising from time-based service for the first time.
We have enhanced judicial efficiency by law, expanded application of interim protection measures such as preservation of property, behavior and evidence, and thus rendered more timely, convenient and effective judicial relief to IPR.
We ruled that the infringer shall shop his misconduct immediately for violating the pre-trial injunction during the case over infringement against the design patent of the “bullet lipstick”.
We have vigorously established honesty and trust in litigation by imposing penalty by law on offenders who destroy, hide or falsify evidence, interrupt and refuse evidence preservation, purposely delay providing evidence, or disrupt testification by witnesses.
We safeguarded the order of legal proceedings by imposing by law a maximum fine of RMB1 million on the offender for his perjury in the case where Hainan Travel Television sued Aimeide Co. for copyright infringement.
Third, we have actively sought to standardize application of IP laws.
We have established a series of important standards for trials to showcase the right way the industry shall behave in development, which proves to be effective guidance. They have been erected by trials of significant and complicated cases with great social influence and high profile, and by research on and handling of key, complex and trended issues in the practice.
By setting up the Intellectual Property Case Guidance and Research (Beijing) Base, the SPC has sought to establish an intellectual property case guidance system with Chinese characteristics, and improve the existing system where sample cases are formed, selected, recognized and used. Efforts have also been put on building the National Intellectual Property Case Guidance and Theory Research Center to integrate the conception, gauge and standard in IP trials.
- We have deepened judicial reform and renovated how judicial power is used in IP trials.
As the pioneer at the forefront of judicial reform, the three IP Courts have been formed in accordance with requirements thereof while trying to build a system where judicial power can be used in the frame of IP judicial disciplines. Their attempt has given birth to abundant experiences that are replicable, which has upgraded IP trial system and judicial capacity, as well as improved judicial quality and efficiency.
First, we have comprehensively implemented the system of judicial accountability.
As the principle goes, “he who trials shall judge, and he who judges shall be held accountable”. We took the lead to implement measures to reform the way judicial power is used by adopting the systems of specified number of personnel, judicial accountability etc., so that we can regulate judicial power in trials, management and supervision to renew the judicial system where judges are in the lead, personnel is classified, rights and responsibilities are clarified, and every element is in coordination.
In addition, we have rendered court presidents and presiding judges less administrative and more judicial, to make their presence at court a normal sense.
We have tried to change the judicial committee’s role based strictly on the according reform requirements by drawing lines between the judicial committee, the collegial penal and the judge regarding their power. The Beijing IP Court put all the members of the judicial committee to a public trial for the first time, which delivered satisfactory results, in the litigation launched by Anhui Huayuan Pharmaceutical Co., Ltd. against the China Trademark Office. We have also attached importance to organizing profession judge meetings to solve complicated legal issues.
Second, we have renovated the system of judicial office management.
In accordance with requirements of judicial reform, we have directed judicial resources to case dealing. On the other hand, management of internal matters has been integrated for a compact office.
The Beijing IP Court has actively explored to establish new systems of integrated support and horizontal management. It held its integrated office responsible for a range of internal work including discipline inspection, personnel organization, information technology, judicial popularization, office facilities as well as logistics and financial affairs.
The Shanghai IP Court combined its office work with that of Shanghai Third Intermediate People’s Court but keeping their case dealing independent. In this way, the judicial committee has been able to focus on coordination of case dealing from reception, trial, to enforcement.
As for the Guangzhou IP Court, it built multiple working teams in the integrated office. The staff works quite independently in respective positions for the whole office, and is held responsible for the member’s personal mistake. Work efficiency has thus been improved.
Third, we have established a multi-dimensioned technical fact-checking system.
The SPC built a system around technical investigators with detailed and well-designed duties in litigation to regulate the use of technical investigation reports as evidence.
All of the three IP Courts have set up offices for technical investigation and hired totally 61 technical investigators. It is conducive to establishing a multi-dimensioned technical fact-checking system where technical investigation synergizes with expert auxiliary, forensic verification and expert consulting.
Technical investigators have provided professional consulting to judges in 1,144 cases to ensure that the technical fact-checking was neutral, objective and scientific.
- We have given full play to the IP Court’s role and thus increased judicial public trust and influence.
As we fit ourselves into the grand economic and social development and respond to judicial demands of the general public, we have played an important part in facilitating national strategies, deepening judicial disclosure and promoting international exchange and cooperation.
First, we have facilitated the implementation of national strategies.
We have organized our work around the main direction to which the CPC and our nation are heading, and guaranteed a sustainable and health development for the economy and society through our service. The Beijing IP Court has stepped up research and argument on concentrated jurisdiction of technical cases in Beijing, Tianjin and Hebei, which proves to be strong judicial support to coordinating an innovative community in the area and accelerating its economic transformation.
The Shanghai IP Court issued the Opinion on Facilitating Shanghai as an Influential Global Center for Scientific and Technological Innovation, and Several Opinions on Providing Judicial Support for Establishment of Shanghai International Trade Center during the 13th Five Year Plan, to pave way for Shanghai’s plan to build an international economic, financial, trade, and shipping center.
The Guangzhou IP Court also issued the Opinion on Providing Judicial Support for Innovation-driven Development by Strengthened Judicial Protection, and Specialized Working Plan Concerning the Lawful Punishment on Intellectual Property Infringement and Manufacture and Sale of Counterfeits, to provide judicial support for the development of China (Guangdong) Pilot Free Trade Zone.
Second, we have comprehensively deepened judicial disclosure.
Under the principle of initiative, lawful, comprehensive and substantive disclosure, we have given full play to four platforms for all-around judicial disclosure.
Online system was launched for reception, consulting, conciliation, and visit along with trial with distance live video to make judicial disclosure more informative and detailed. Research on judicial data was also conducted by professional institutes to establish a scientific, reasonable and objective assessment system for judicial public trust.
We availed of the International Intellectual Property Day to hold events for promotion and popularization of sample IP cases. It has helped to raise the common people’s awareness towards protection of intellectual property, and thus cultivate a climate where the whole society participates in and gives support to IP protection.
Third, we have continued to expand our influence in the global society.
Foreign parties have increasingly demonstrated the will to put their IP cases in our hands thanks to our positive image as impartial and efficient as we handled foreign-related IP litigation by law.
The SPC signed an MoU with the World Intellectual Property Organization as a beginning to increase its presence in international cooperation in other fields.
We built the Chinese Courts International Exchange Base (Shanghai) for Judicial Protection of Intellectual Property to be more engaged in international communication and cooperation.
Significant international conferences such as the Intellectual Property and International Trade Forum, and EU-China Judges’ Forum were held to delve into cutting-edge issues related to judicial protection of IP as well as showcase the achievement we had made in this field.
More than 110 groups of delegates accounting for over 1,300 members from many countries and international organizations including the US, the EU, the WTO and the INTA have been received and engaged in international communication in the Sino-US exchange program for IP judicial protection and at the forum noting the 10thanniversary of IP dialogue between China and the EU. They have all contributed to a more equal and reasonable framework of international IPR.
1.4 We have cultivated the judicial personnel to improve the IP judicial capacity.
Since IP trials are highly technical, expansively applicable, and globally influential, the three IP Courts have strived to armor their personnel and built a reliable team to keep up with the constantly changing situations and tasks. Such a well-structured arrangement has effectively facilitated their case dealing.
First, enormous work has been done to build the mind. We launched the “Three Stricts and Three Honests” and “Two Studies and One Action” education campaigns to study and practice the spirit delivered in General Secretary Xi Jinping’s series of important speeches and New Ideas, New Thoughts and New Strategies on Governance, and entrench Four Consciousness in our mind. Through our efforts to synergize party building and team building, judicial reform and trial proceedings for common improvement, internal commitment, judicial belief and professional conscience have been upheld and remained unshaken, which has given rise to a number of reputed judges who have always do the people justice. As a result, 4 tribunals and 22 individuals of the three IP Courts have received provincial and/or above level awards.
Second, we have built the IP Courts towards a formal, specialized and professional team. As required in the judicial reform, 90 judges have been selected and employed, 78.9% of which holds Master’s or above degrees. Auxiliaries such as judicial assistants and clerks account for 195, and the administrative personnel counts 27. We have also pooled talents for IP trials, and put expert judge thereof for complicated cases so as to give them even more training. Thanks to our professional team of judges, judicial quality and efficiency have been enhanced. On average, the teams of judges have concluded 368 cases. As for other personnel, position-relevant training and study have been conducted to promote interpersonal communication and their work performance.
Third, we have comprehensively implemented strict disciplines on governance of the party and the IP Courts as required. We have always upheld strict standards throughout team building of the IP Courts in education, management and supervision. Together with enhanced work on party conduct, clean government and anti-corruption and down-to-earth practice of the Politburo’s Eight Rules, we have been able to operate a clean and honest judicial team with better discipline. No violation of discipline or breach of law has occurred since the establishment of the IP Courts.
In general, in the recent three years, the Beijing, Shanghai and Guangzhou IP Courts have slashed open a path of specialized IP trials with Chinese characteristics with the spirit and courage to do what has never been done. Their innovative work has renew the nation’s image as a IP protector in judiciary, and invoked positive comments from the general public and the international society.
The IP Courts have increasingly showcased their importance as they deliver satisfactory results in the three years.
First, we have set up a series of rules for trials by handling significant sample cases. In the process, we have demonstrated a clear-cut attitude for encouragement and protection to innovation, and thus guided the industry and facilitated the national strategy of innovation-driven development.
Second, we have stepped up punishment on IP infringement. By promoting an honest society, and solving issues of low cost for infringement but high for relief, we have maximized the role of judicial protection as a leading element in IP protection.
Third, we have continued to specialize judicial bodies, personnel and work, unify judicial standards, and improved judicial efficiency. It has served as an example of courts nationwide to improve their capacity in IP trials.
Fourth, we have implemented the requirements of judicial system reform in building and operating the IP Courts. By pressing forward judicial accountability system, classified personnel management and job security reform, we have continued to regulate the use of judicial power and lead the judicial system reform.
Fifth, we have scaled up the nation’s international influence in IP judiciary by telling a good story, making our voice heard and showcasing our achievement regarding law-based governance during international exchange and cooperation in the field.
As a milestone on the path to strengthen IP judicial protection, the establishment of the Beijing, Shanghai and Guangzhou IP Courts has renewed IP trials. Practice in these three years comes as solid evidence to prove correct the CPCCC’s decision and deployment, and prove suitable the NPCSC’s decision for what is in need for IP protection. They are both profound moves.
What has been achieved by the IP Courts owes plenty to the leadership of the CPCCC united around Comrade Xi Jinping, the supervision of the NPC and its Standing Committee, the support of the State Council, the supervision of the Chinese People’s Political Consultative Conference, and the care, support and help contributed by the party committees, people’s congresses, governments, political consultative conferences, all walks of the society, and the people in Beijing, Shanghai and Guangdong.
Members of the NPC and the municipal/provincial people’s congresses are not to be left. They have supervised and supported the work of the IP Courts with high responsibility and thus propelled and witness the development of the cause of IP judiciary. I hereby express my heartfelt gratitude on behalf of the SPC and the three IP Courts.
- Current problems and difficulties
In spite of notable success, we have remained sober and become aware of some problems and difficulties noticeable in practice as the IP Courts’ work unfolded.
First, the scale of cases received has grown unexpectedly faster, which has kept adding pressure to our work.
Second, new situations and problems have kept arising in the field as scientific and technological innovation progresses. It has become a great challenge to the IP Courts’ judicial capacity.
Third, our teams of cadres and talents have become less sustainable over time as the security system is not yet satisfactory to attract, retain and cultivate high-leveled talents.
Fourth, courts in charge of second instance trials for IP cases vary a lot. For example, administrative cases concerning confirmation of licensing rights are handled by the Beijing IP Court for first instance trial and then by Beijing Higher People’s Court for second instance trial. However, for other IP cases in general, second instance courts vary from basic, intermediate, to higher ones. Such a chaos is likely to cause conflicting law application, and in the end damage public trust of the judicial system. The IP judicial structure and trial standard are pending further unification.
Fifth, specialized IP jurisdiction has an arm not long enough to cover areas with dynamic innovation and judicial needs.
- Advice on following work and measures
As a significant part of the CPCCC’s plan of reform, the establishment and development of the IP Courts concern implementation of the innovation-driven development strategy, building of an innovation-oriented country, and development of the economy and culture. The People’s Courts will continue to improve the work of the IP Court’s and regard it as our strategic mission in the long term. We will strive for improvement of work and IP judicial capacity and level.
3.1 We will build our mind to guarantee a healthy and orderly development of the IP Courts.
We will practice the party and the nation’s plan on strengthening IP judicial protection by consciously taking on heavier political responsibility and historical mission with the awareness of the IP Courts’ important role, by giving full play to the leading role of judicial protection in safeguarding IPR when upholding the New Development Ideas, and exercising the innovation-driven development strategy as well as cultivating a new climate of law-based governance for optimization of technological innovation.
- We will make better use of the IP Court’s role with clear targets.
We will handle all types of IP cases with reason and by law within the frame of the party and the nation’s work. We will take gradual and coordinated steps to perfect a judicial system to make it adaptable for IP cases, to improve the quality and efficiency of IP trials, and to intensify judicial protection of IPR. In this way, infringement on IPR can be effectively tamed, during which our public trust will see an increase. We will improve our judicial protection system with Chinese characteristic while adopting an international vision and respecting rules in the world to build the nation into one with priding portfolio of IP and technology.
- We will insist on a problem-solving-oriented reform to push it further.
We will unswervingly press forward judicial reform and make measures for reform more targeted and rewarding. It all comes down to encourage and protect innovation in innovative ways. In practice, we will build a mechanism that is able to dynamically adjust the number of judges in the IP Courts. With scientific estimation of the judges needed, it can fill vacancies as soon as possible. We will reasonable allocate judicial resources by distinguishing between simple and complicated cases, optimizing judicial proceedings, and renew the presentation of ruling and judgment. We will also use more cadres in exchange to the courts, judicial volunteers and legal interns as well as explore to use social service to fill vacancies of auxiliaries.
- We will work on team building to further improve the IP Court’s judicial capacity.
We will continue to build a formal and professional team with enhanced morals and skills by cultivating its judicial capacity and providing trainings on technical knowledge. We will engage IP judges in international exchange for closer cooperation and meanwhile seek to better international rules on IP governance by more participation therein. We will build a stronger technical investigator team to boost its role in guaranteeing unambiguous case facts.
Here are three pieces of advice on new situations and existing problems faced by the IP Courts:
First, it is suggested to deepen reform of the way IP cases are trialed at first instance courts.
The NPCSC may authorize the IP Courts to pilot single-judge trials when it comes to simple first instance civil and administrative cases, so as to make legal proceedings proportionate with the size of cases.
Second, it is suggested to conduct special inspection to the IP Courts.
The NPCSC may launch special inspection now and then to the Beijing, Shanghai and Guangzhou IP Courts to overhaul their work.
Third, it is suggested to improve the work mechanism of the IP Courts.
From the strategic vision of building a nation that leads the world in IPR and technology, a state-level mechanism for appeal and review of IP cases is recommended to be brought under research and put on the agenda for establishment. I will be conducive to specialization of trials, centralization of jurisdiction, intensification of proceedings and professionalization of personnel.
I also call for setting up more IP courts step by step based on successful experiences of the three IP Courts. In this way, we can further improve the specialized judicial system oriented for judicial protection of IPR and better serve the development of technology and innovation which is giving birth to increasing needs for such judicial proceedings.
Distinguished chairman, deputy chairmen, general secretary, and all members presented, I would like to thank you for your attention to my report on the work of the IP Courts. Your deliberation and approval at the meeting serves as solid evidence of how you care and support the work on IP judiciary by the people’s court.
We will take your opinions by heart and keep improving our work at the IP Courts under the leadership of the CPCCC closely united around Comrade Xi Jinping, and the solid supervision and support of the NPC and its Standing Committee. We will avail of new opportunities while welcome new challenges, work with down-to-earth attitude while keep seeking progress for better results at the eve of the 19th National Congress of the Communist Party of China. I wish the meeting all success.
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