On 26 October 2018 the National People's Congress decided that all appeals of lower-court judgments rendered in cases with a technical aspect should be submitted to the Supreme People's Court (SPC). As a result of this decision, the SPC created a detached tribunal known as the SPC IP Court.
On 27 December 2018 the SPC promulgated the Provisions on Several Issues concerning the SPC IP Court, which set out how the new court will function and its jurisdiction. The new court commenced a three-year trial period on 1 January 2019.
In China, the judicial authorities which deal with IP matters have different names according to their particular status, which can be confusing.
People's courts comprise several divisions, some of which are officially entrusted with certain matters, such as intellectual property. In practice, such divisions may be referred to as the IP tribunal of the court which they fall under. In Chinese, they are referred to as Zhishi Chanquan Shenpan Ting, with 'Ting' indicating that they are an integral part of the court.
The above also applies to the SPC, whose divisions include Adjudicating Division 3, which specialises in IP matters and is sometimes called the SPC IP Tribunal.
Further, since 2015 three so-called 'IP courts' have been operating in Beijing, Shanghai and Guangzhou. These courts are completely independent jurisdictions; they are not divisions of a larger entity. They are called Zhishi Chanquan Fa Yuan, with 'Fa Yuan' indicating that they are independent.
The new SPC IP Court is a special kind of body. In Chinese, it is called Zhishi Chanquan Fa Ting, with 'Fa Ting' indicating that while it is a part of the SPC, it enjoys a certain level of independence. Technically, it should be called a detached tribunal, but the use of the word 'tribunal' could create some confusion with the abovementioned IP tribunals or divisions. Thus, the SPC decided to use the English word 'court' in order to avoid any confusion.
Article 1 of the provisions specifies that the SPC IP Court is a permanent entity physically detached from the SPC (its premises are located in the south of Beijing), but that its judgments are SPC judgments.
Article 2 specifies that the SPC IP Court has jurisdiction over:
- all appeals against judgments and rulings rendered by the high courts, the intermediate courts and the Beijing, Shanghai and Guangzhou IP Courts in civil cases involving:
- invention patents;
- utility models (but not designs);
- new plant varieties;
- technical secrets;
- computer software;
- electronic integrated circuits; and
- antitrust matters;
- all appeals against judgments and rulings rendered by the Beijing IP Court in administrative cases involving invention patents, utility models, designs, new plant varieties and integrated circuits (but not antitrust, computer software or technical secrets); and
- all appeals against judgments and rulings rendered by the high courts, the intermediate courts and the Beijing, Shanghai and Guangzhou IP Courts in administrative cases involving all of the IP types set out in the first bullet point above, plus designs.
Further, Article 2 stipulates as follows:
- The SPC IP Court may accept, at first-instance level, cases that are important or complex nationwide.
- Where lower-court judgments, rulings and mediation decisions mentioned in the above set of bullets have become effective (ie, where there is no appeal before the SPC IP Court), it is still possible to file a retrial application before the SPC IP Court within six months.
- The SPC IP Court will hear appeals filed against lower-court judgments (in cases mentioned in the above set of bullets) that:
- are based on jurisdictional issues;
- imposed a fine or detention; or
- prolonged the procedural time limits.
- The SPC IP Court may hear any other cases that it deems necessary to accept.
Under Article 4 of the provisions, the SPC IP Court will use modern technologies to undertake procedural processes. Subject to the litigating parties' agreement, the court may serve all documents relating to the case (eg, the summons to appear, evidence and judgments) via:
- an electronic platform (internal to the case and accessible only to the court and the litigants);
- the China Judicial Process Information Online website (accessible to the public);
- fax; or
- email.
Further, Article 5 stipulates that the court may organise the exchange of evidence or pre-trial meetings on the electronic platform or via video conferences.
As regards the physical location of hearings, the SPC IP Court is flexible and may adjust to the circumstances of each case. Thus, the panel of judges may, for example, hold a hearing where the first-instance judgment was made or, for example, where the alleged infringing heavy machinery is located (Article 6).
Under Article 8 of the provisions, all information concerning a case (eg, the case filing, the composition of the panel of judges, the parties' identities, the procedure and the judgment) will be published on the China Judicial Process Information Online website.
Article 9 of the provisions stipulates that important, controversial or difficult cases will be decided after internal consultation between the president, the vice president and several experienced judges of the SPC IP Court (which together constitute the judges council).
Article 10 of the provisions states that the SPC IP Court is in charge of conducting research and establishing criteria and rules to guide the practice of the lower people's courts.
As provided by Chinese Law, the procuratorates may request the revision of judgments. Under Article 11 of the provisions, requests for revisions of judgments made by the IP or intermediate courts should be made by the Supreme People's Procuratorate (not at the provincial level) before the SPC.
The provisions provide for the following transitory measures:
- Appeals of all judgments issued before 1 January 2019 will follow the rules which were in place before the SPC IP Court was created (Article 12).
- The above principle also applies to judgments that took effect before 1 January 2019 (Article 13).
- Some local (basic level) courts may have had jurisdiction to accept cases involving technical aspects. After 1 January 2019, this will no longer apply. However, the previous rules governing appeals will continue to apply to cases still pending on 1 January 2019.
Since the new SPC IP Court is part of the SPC, people have questioned which body will review applications for retrials filed against the new court's judgments.
Thus, in October 2018 the SPC verbally confirmed during a press conference that retrial applications filed against SPC IP Court judgments will be adjudicated by the SPC IP Tribunal. This has given rise to speculation that, whenever a case is adjudicated by the SPC IP Tribunal acting as second instance (when the case started at first instance at the high court level), the SPC IP Court might serve as the retrial court. As such, the SPC IP Tribunal and the SPC IP Court might serve as the retrial court for each other's cases.
For further information on this topic please contact Paul Ranjard or Zhigang Zhu at Wanhuida Peksung by telephone (+86 10 6892 1000) or email ([email protected] or [email protected]). The Wanhuida Peksung website can be accessed at www.wanhuida.com and www.peksung.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
