A draft proposal for a national appeals IP court is being considered by China’s National People’s Congress Standing Committee, according to a Xinhua news report. While the court aims to provide more consistency in legal decisions and increase the quality of trials, IP practitioners in China have shared concerns about the high volume of cases that the court would need to handle.
The goal of the proposed court is to be a national appeal court for civil and administrative IP cases, according to Chief Justice Zhou Qiang. He added: “Due to the complexity of IPR cases and expertise needed for their trials, a national appeal court will help prevent inconsistency of legal application and improve the quality and efficiency of trials.”
Although IP practitioners believe the creation of the court may reduce local protectionism and provide consistency in legal decisions, they are surprised that the court is being set up within the Supreme Court instead of creating a lower level organ. “It seems like a good initiative to centralise all the appeals for patent and technology related cases, both infringement and prosecution, nationwide to ensure consistency, accuracy and efficiency,” says Jerry Xia, deputy general counsel and chief IP counsel, APAC, Honeywell. “However, it’s a little surprising that the Supreme Court plans to set up such an IP appeals tribunal on its own rather than creating a separate lower level organ.”
He adds: “One concern is if the Supreme Court will handle all the appeals itself, how will the petitions for retrial be handled if one party is still unsatisfied with the appellate judgment? If the Supreme Court will handle both, is there any presumed bias?”
A question that remains to be answered is what mechanism will be used to qualify a case for the appellate IP court's jurisdiction. “One potential challenge of the appeals IP court could be being overloaded by a high volume of cases, especially if IPR cases from lower level courts, not just the existing specialist IP courts and tribunals need to be handled,” says Elliot Papageorgiou, head of IP at Clyde & Co in China.
Presently, for IP litigation cases in China, there is a decent chance of getting a case to the Supreme People’s Court if the Supreme Court deems that the case has strong merit, or an important point of law or practice which warrants consideration by the Supreme Court, especially if the first instance hearings occur at a higher level court. However, cases starting at lower level courts/district courts may be stuck at or below the Intermediate People’s Courts' level since there are only two instances as of right in China, irrespective of which level court the first instance is heard at.
Papageorgious adds: “If the proposed IP court is intended to also take on these cases, its docket may be quite quickly overloaded. This should be a concern when judges at certain Chinese courts reputedly have between 200 and 300 cases on their docket each year, and there were over 213,000 IP cases filed in 2017.”
Xia agrees and he points out that given the large volume of IP appellate cases across the country, it will be a challenge for the Supreme Court to hire enough qualified IP judges to ensure timely and quality handling. He adds: “If everything will be based in Beijing, all the parties involved in the appeals need to go there and wouldn’t it be too crowded there? How the mechanism will be designed and implemented remains to be seen.”
