On August 31, 2014, the Standing Committee of the National People’s Congress of China issued the Decision on the Establishment of Intellectual Property Rights Courts (IPR Courts) in Beijing, Shanghai and Guangzhou (http://news.xinhuanet.com/english/china/2014-08/31/c_133609565.htm). According to the Press Conference of the Higher People’s Court of Beijing, the Beijing specialized IP Court plans to be fully established in November 2014. The other two courts in Shanghai and Guangzhou will also be fully established by the end of the year.
China has courts of general jurisdiction with specialized divisions that hear IPR cases. To date, more than 2,700 specialized IPR judges have been assigned to these specialized divisions. The number of IPR case has been growing rapidly in China recently. According to the Supreme Court, the number of the IPR cases dealt with by courts has reached 100,000 in 2013, most of which are handled by courts in Beijing, Shanghai and Guangzhou. In the meanwhile, more and more cases concern cutting-edge technology and are highly specialized, making them very complicated and technically challenging for judges.
The Decision is more far-reaching than the press-release seems to imply. According to the Decision:
- The IPR Courts shall have jurisdiction over first instance civil and administrative IPR cases which are highly specialized and technical, such as patents, new varieties of plants, integrated circuit layout designs and know-how. The Decision further provides that the IPR Courts will have trans-regional jurisdiction on above-mentioned cases. Within three years of the establishment of the IPR Courts, this trans-regional jurisdiction may first be exercised in the province/municipalities where the IPR Courts are located.
- Appeals of civil and administrative judgments and decisions of trademark and copyright related cases tried by grassroots People’s courts in Beijing, Shanghai and Guangzhou will be handled by the IPR Courts in these three cities respectively;
- The Beijing IPR Court will hear the first instance trial of administrative cases regarding disagreement with validity/invalidity decisions made by administrative authorities;
- Appeals of first instance cases and appeals tried by the IPR Courts shall be filed to the Higher People’s Court of the province/municipalities where the IPR Courts are located.
New Features of the IPR Courts:
Considering the highly specialization and technically complexity of most of the IPR cases, the IPR Courts will appoint professional forensic investigators to assist judges to deal with technical facts. The Supreme Court is currently drafting a judicial interpretation to clarify the details of the appointment of the forensic investigators and their roles in litigation.
China has been long accused by its large trading partners of lack of effective IPR enforcement. The Decision to establish specialized IPR Courts will have a profound impact on the enforcement of intellectual property rights in China. On the one hand, there is no doubt that with more skilled and professional judges and forensic investigators the IPR Courts will increase the efficiency and effectiveness of China’s IPR enforcement and further improve a healthy investment environment. On the other hand, the reform is geographically limited. In cases where there is geographical difficulty in accessing these courts, the inadequate enforcement remains. This may, to some extent, impede investments to the other regions. More importantly, the IPR Courts may further squeeze IPR cases out of the public attention. It still remains to be seen how the new IPR Courts will be supervised in practice to improve judicial transparency.