Last November, the Third Plenum of the 18th Party Congress
released a paper saying it was looking into establishing
intellectual property courts. In the last few weeks, both
Guangdong and
Beijing have indicated that they would like to house the
first of these courts.
The move to create an IP court is not surprising. In fact,
according
to a 2012 report by the International Intellectual Property
Institute (IIPI) and the USPTO, the majority of TRIPS
members have specialist IP tribunals or courts of some
sort.
Is it worth it?
The IIPI report lists six general benefits fostered by
specialised IP courts:
1. Subject matter expertise;
2. Faster decisions;
3. Specialised procedures uniquely for IP cases;
4. Consistency and predictability of outcomes;
5. Faster to adapt and change; and
6. IP protection is highlighted as a government
priority.
Practitioners have noted that many courts in China already
have specialised IP divisions. Thus, China is likely already
reaping some of these benefits, such as developing judges with
subject matter expertise, which in turn can lead to more
consistent and predictable results.
Similarly, China’s judicial system is already
quite fast. According to the CIELA database, the average
IP-related proceeding was resolved in four months, with
some popular venues taking a bit longer (Beijing –
five months, Shanghai – seven months, Guangzhou
– nine months).
That said, the move to create a separate IP court can
perhaps magnify these benefits. For example, despite many high
profile campaigns and undertakings like the National IP
Strategy, China still has a reputation
in some circles of being a bad actor when it comes to IP.
The establishment of an IP court may be in part a signal to
trade partners of the country’s efforts. Whether
such a court will help China’s reputation,
however, is unclear.
The new IP court may also be used to implement reforms to
specific parts of the court system. Improving the local courts,
which some practitioners say tend to lag in quality in
comparison to the higher levels, may also be a goal of the new
system.
"Courts in many Chinese cities already have IP tribunals,
usually starting at the intermediate and higher
people’s court levels; it’s not clear
on the face of things how the new proposed IP courts will
differ," says Joe Simone of Simone IP Services. "But it seems
likely that the government is planning to extend the IP court
system to the basic level courts… Judges in the basic
level courts typically don’t get as much training
on IP law and are less professional."
Part of a larger picture
The IP court system will exist alongside other reforms. For
example, some courts have been experimenting with the so-called
three-in-one system, where one tribunal would hear the
criminal, civil and administrative aspects of a related IP
case. Similarly, China has also been pushing to increase
transparency in both administrative and judicial proceedings by
publishing more information about the decisions. In the case of
all judicial proceedings, not just IP, decisions must be
published unless there is a compelling reason against it.
"There has been a trend of increasing professionalisation
and experimenting with innovations aimed at promoting
settlements, such as initiating mediation discussions at the
beginning of proceedings, rather than after trials are
completed," says Simone.
Indeed, the reforms extend far beyond intellectual property.
As Mark Cohen
pointed out, improving judicial professionalism may involve
issues such as how lower courts are funded in order to limit
local influences. Furthermore, because IP rights holders are
much likely to be involved in administrative proceedings, the
reforms on that front may in fact be more important than having
a specialised IP court.
What do you think? What would you like to see in
China’s new IP court?