On February 27 2018, the top policy-making bodies in China (the General Office of the Party and the General Office of the Council) published an unprecedented policy roadmap for reforming the IP adjudication system (opinions). The opinions reveal much clearer thinking and critical measures for reforms and innovation in the IP adjudication system.
The opinions again emphasise the important role of judicial protection of IP. It will be interesting to see if these opinions have a direct impact on patent administrative enforcement. In the recent draft amendment to Patent Law, several provisions proposed granting administrative authority more power in patent enforcement matters, which caused considerable controversy. In light of the opinions, such provisions in the draft amendment to Patent Law might be modified significantly before being passed by Congress.
The opinions propose establishing a national IP appellate hearing mechanism in order to solve the potential issue of inconsistency among different IP courts across the country. From the wording, it is hard to ascertain the nature of the appellate mechanism. One possibility is having one appellate court review all decisions from all first instance IP courts. Another possibility is having one appellate court with several divisions review the decisions from their respective first instance courts.
As of today, there are three IP courts in Beijing, Shanghai and Guangzhou, as well as specialised IP tribunals in some major cities. Following on from Shenzhen and Xi'an, cities such as Tianjin, Zhengzhou and Changsha are reportedly to acquire IP tribunals soon. It is predicted that the provinces with strong economies will have one or two IP tribunals in order to achieve cross-region jurisdiction. Beijing IP Court will soon have jurisdiction over some IP cases in the neighbouring provinces. Such centralised jurisdiction is the trend, especially for patent cases.
The opinions propose picking IP judges from legislative staff, lawyers and legal scholars and at the same time seconding judges to government roles in different cities for more experience. Unlike the US, China does not have a tradition of selecting judges from lawyers. In the past five years, some limited experiments were done. With the release of the opinions, we might see more lawyers in private practice becoming judges.
The opinions propose several measures to reduce the burden of proof carried by IP owners and also propose determining damages. In addition, the IP case guidance system will be improved, and an expeditious procedure will be introduced for IP cases to reduce caseloads. All these measures, if adopted, will continue to change the landscape of IP litigation in China.
Notably, the opinions call for strengthening the capacity building of technology investigation officers and creating rules for the admission of technology investigation comments. This issue has increasingly been a concern for litigants wanting fairness in the procedures.
In China, technology investigation officers help judges with technical fact finding, a practice which is believed to come from Japan. A technology investigation officer serves as an assistant to the panel and may attend the litigation proceedings, including hearing the oral debates and sitting in the panel deliberation. Most of these technology investigators are chosen from patent offices.
Relevant laws are to be amended to accommodate the reform proposals and measures mentioned above. Therefore, it is expected that the National People's Congress will speed up the review of the amendments to Patent Law and Copyright Law, as well as the relevant laws on the court organisation structure.
In conjunction with the proposed merge of the China Patent Office and Trademark Office, the upcoming changes in IP trials inspire hope of some real improvements.
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