Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

China patents: China proposes reforms for its IP adjudication system

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.


He Jing

Chen Zhixing

AnJie Law Firm26/F, Tower D, Central International Trade Center6A Jianguomenwai Avenue, Chaoyang District, Beijing 100022, PR ChinaTel: +86 10 8567 5988Fax: +86 10 8567

more from across site and ros bottom lb

More from across our site

Civil society and industry representatives met in Geneva on Thursday, September 28 to discuss a potential expansion of the TRIPS waiver
Sources say the beta version of the USPTO’s new trademark search tool is a big improvement over the current system but that it isn’t perfect
Canadian counsel weigh in on the IP office’s decision to raise trademark filing fees in 2024 and how they’re preparing clients
We provide a rundown of Managing IP’s news and analysis coverage from the week, and review what’s been happening elsewhere in IP
Shira Perlmutter, US Register of Copyrights, discussed the Copyright Office's role in forming generative AI policy during a House of Representatives hearing
The award marks one of the highest-ever damages received by a foreign company in a trademark infringement suit in China
Two orders denying public access to documents have reignited a debate over a lack of transparency at the new court
Rouse’s new chief of operations and the firm’s CEO tell Managing IP why they think private equity backing will help it conquer Europe
Brian Landry, partner at Saul Ewing, reveals how applicants can prosecute patent applications in the wake of the Federal Circuit's In re Cellect ruling
Ronelle Geldenhuys of Australia’s Foundry IP considers the implications complex computer technologies such as AI have on decision-making