From Tribunal to Court: Latest Development of Judicial Protection for Intellectual Property in China^*

 

Xiaoqing Feng^** & Li Wang^***

^{原载China and WTO Review(韩国), 2017, No.2}

 

The judicial protection of IP is the most important form and the fundamental guarantee for the protection of IP in China. The judicial protection system of IP in China has experienced the development procedure of setting up special tribunal, pilot "three-hearing-in-one" and special court. The establishment and operation of IP courts in Beijing, Shanghai and Guangzhou marks the establishment of the new hearing system of IP in China. The founding and operation of IP courts has an in-depth background: with the rapid development of economy in China, especially with the entrance of the WTO, there are more and more IP cases and it constitutes huge challenge to adjudication of IP in China, of which the establishment of IP courts is a good way to cope with. The establishment of IP courts will undoubtedly have deep influence and significance in the judicial protection of IP in China, although there are also many problems and difficulties to tackle with.

 

 

Keywords:  Special Courts, IP Court, Judicial Protection, China

 

I. Introduction

 

Judicial protection is the most important form to defend Intellectual Property (“IP”) in China. It aims to ensure effective implementation and enforcement of IP through the People’s Courts at all levels timely and correctly.^[1] The basic form of judicial protection of IP in China has developed from special tribunal, pilot of “three-hearing-in-one”^[2] to the special court. The first group of IP courts in China was started in 2014. Today, the IP courts have received widespread attention at home and abroad.

This research will explore the theory and practice of China’s judicial protection of IP with special references to the IP court. This paper is composed of seven parts including a short Introduction and Conclusion. Part two will analyze the evolution of China’s judicial protection system of IP. Part three will examine the background of the founding of IP court in China. Part four will discuss China’s court system of IP. Part five will probe into the function and significance of the special courts of IP in China. Part six will focuses on the problems for improving the operation of IP courts in China.

 

II. The Evolution of China’s Judicial Protection of IP

A.     Background

 

China has strengthened the judicial protection of IP following the international and domestic situation. First, judicial protection of IP in China complies with the international trend. Today’s scientific and technological progress is largely integrated with economic and social development as well as every aspect of human life. In this context, the core strategic position of IP in national economic development is displayed.^[3] The protection of IP has come to a post-TRIPs Agreement era, featured by improving the protection level and strengthening the legal measures of enforcement. The Trans-Pacific Partnership Agreement (“TPP”) and the Transatlantic Trade and Investment Partnership Agreement (“TTIP”) are building higher protection level of IP. In 2011, the Anti-Counterfeiting Trade Agreement (“ACTA”) was signed, which has enhanced and implemented legal enforcement for IP as well as severe fight against piracy and counterfeiting than that of TRIPs Agreement. The IP protection would sometimes cause political and diplomatic friction. In this regard, China is trying to strengthen the judicial protection of IP in practice.

Second, judicial protection of IP is due to promoting domestic sustainable development. The protection of IP in China has transformed from “being forced to use” to “making use of it” and from “passive transplant” to “positive arrangement.”^[4] In terms of judicial protection of IP in China, the role of the internal factors and forces is becoming increasingly prominent. During the development, the imbalanced level between different regions, the incongruity between various social relations and the unsustainable mode of development are exposed. The shortage of resources and environmental pollution would indicate that the traditional mode of economic development is not sustainable anymore. To achieve the sustainable development in China, the traditional way of development through resource consumption must come to the end. Instead, economic development should be more on knowledge-based globalized. IP has increasingly become the strategic resource of national development. Scientific and technological progress and cultural development have become the internal demand for China to construct an innovation–oriented country.

 

B.      The Special Tribunal System for IP Protection in China

Since the second half of the twentieth century, hearing system for IP cases has been reformed all over the world. Many countries including the UK, South Korea, Japan, the US set up either independent courts or special appellate court to handle IP cases.^[5]

China also started to specialize the organization for this IP trial. As early as 1993, Beijing Municipal Higher People’s Court and Beijing Intermediate People’s Court firstly set up the IP tribunal mainly for hearing civil disputes involving IP. In 1994, both Shanghai Higher People’s Court and Shanghai Intermediate People’s Court established IP tribunals. In 1996, the IP tribunal of the Supreme People’s Court came into being. Subsequently, provinces and cities all over the country started to set up IP tribunals. As of today, China has hundreds of IP tribunals (31 higher people’s courts + more than 400 intermediate people’s court + more than 100 grassroots courts) with more than 3000 judges specialized in IP cases, who hear about 100,000 IP cases every year.^[6]

 

C.      The Establishment of IP Courts in China

 

As China gradually strengthens judicial protection of IP, the IP disputes have outnumbered one hundred thousand pieces for several years, ranking No.1 in the world. As IP cases have become more complicated and the judicial protection system has faced with many problems, such as how to guarantee the cultivation and building of the judge team; how to handle the ‘cycle litigation’^[7] of IP cases; how to solve the procrastination and low efficiency in IP infringement litigation; and how to solve the non-consistency of criteria and the issue of “different judgment for the same case.” Special tribunals for IP have been thus set up widely in the whole country in order to solve these problems. In practice, China has established specialized IP courts. Since November of 2014 when Beijing, Shanghai and Guangzhou established IP courts successively, a total of 15772 IP cases of various types have been heard by the end of December 2015.^[8]

 

Table 1: Development of IP Courts in China.

 

Year	Event
1997	Yongshun Cheng, the then the deputy chief judge of tribunal of IP under the Beijing Higher People’s Court, firstly proposed the establishment of IP court. [9]
2001	At the 4th session of the 9th Chinese People’s Political Consultative Conference, Boming Wu, the then the deputy director of National IP Office (“SIPO”), proposed to establish IP court in China listing the benefits of the IP court.[10]
2008	The Outline of National IP Strategy issued by the State Council proposed: “Studies also need to be done to reasonably centralize jurisdiction over cases involving patents or other cases of a highly technical nature and to explore issues on setting up appellate courts for cases involving IP.” [11]
2013	Paragraph 13 about The Deepening Reform of Sci-tech System of Decision, of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform (hereinafter the Decision of Deepening the Reform) explicitly pointed out: “The use and protection of IP shall be strengthened and the incentive mechanism for technical innovation shall be improved to establish IP court.” [12] Afterwards, Beijing, Shanghai, Guangzhou, Nanjing, Chengdu, Zhengzhou and other places applied to set up IP courts.
June, 2014	The third meeting held by the Leading Group of Comprehensive Deepening Reform of Central Committee of the Communist Party of China approved the Plan on Setting up Court for IP.
August, 2014	The 10th session of the 12th National People’s Congress Standing Committee made a decision which was announced in the form of legislation that in Beijing, Shanghai and Guangzhou IP courts would be set up.
October, 2014	The Supreme People’s Court issued Provisions Regarding the Jurisdiction of Cases in IP Court in Beijing, Shanghai and Guangzhou（hereinafter Provision of Jurisdiction）,  which elaborated the jurisdiction of IP court.

 

III. Why China Set up IP Courts?

A.     Practical Grounds

1. Large Number of Professional and Complex IP Cases

Statistics shows that the number of IP cases that the people’s court at all levels in China handled is 104451 in 2012, 100,800 in 2013, 133,863 in 2014, and 149,238 in 2015, respectively.^[13] Every year, hundreds of thousands of IP cases have been accepted by the intermediate people’s courts and more than one hundred grassroots people’s courts appointed by the Supreme People’s Court. However, because of unbalanced economic development, the cases are mainly concentrated in Beijing-Tianjin-Hebei Region, Yangtze River Delta Economic Zone and the Pearl River Delta Economic Zone.

IP cases differ from common civil cases in complexity. They are combined by private and public rights, and technical expertise and civil, criminal and administrative issues. At the same time, along with the development of science and technology, more intellectual achievements of the human race shall be involved in the adjustment by IP law. Therefore, while hearing the trial of the IP cases, they need to have both technical and IP knowledge to meet the special requirements. Namely, special judicial organization should be established according to their own characteristics.

When the IP courts were founded in Beijing, Shanghai and Guangzhou, the trial resources were optimally allocated so that special court practice is fully applied in trial. Article 7 of Decision regarding the Setting up IP Courts in Beijing, Shanghai and Guangzhou specifies: “After three years from the enforcement of this decision, the Supreme People’s Court shall report the implementation of the resolution to the Standing Committee of the National People’s Congress.” It means that the IP courts established in the three places of China should be as experimental units to collect the most representative judgment experience in China before being promoted nationwide, which fit for consideration as to cost and benefit. It can be said that the establishment of the special courts in the three places was the right choice considering China’s reality and international experience.

 

2. Establishment of IP Tribunal

The first step for China to specialize the hearing of IP cases was to establish special tribunals. Since the 1990s, all the courts with the jurisdiction over IP cases have set up special tribunals. However, those IP tribunals did not match their name because many IP tribunals were just civil tribunals dealing with civil cases involving IP. In some areas, IP tribunals are re-named as “Civil Division Five,” which actually abandons the specialty of IP and generalizes them into civil cases, while, in other areas, IP judge used to be transferred to hear general civil cases. Considering the highly technical IP cases, the vagueness of the law and the varying level of judge would result in the non-consistent interpretation and application of laws in practice. The condition that “different judgment, same cases” appears in different courts and districts, which affects the judicial authority. Although IP tribunals are widely set up in large numbers, the issues of unifying judgment criteria, improving judicial efficiency and promotion of professional ability of judicial organization still remain.

 

3. The Attempt and Promotion of Three-Hearing-in-One mode

When IP cases are divided by their natures, they shall be heard by civil, administrative and criminal tribunals, respectively. Unless the laws applied by different divisions are unified, the same fact commonly may result in different outcome as a consequence of non-consistent identification of the same facts by different tribunals.^[14] For such IP cases, centralizing them into one tribunal can ensure the identity of different types of cases and avoid conflicts and negative impact on judicial authority. We can probe into them in three aspects as follows.

The first is the Exploration of the Hearing Mode of “three-hearing-in-one” for IP cases.  In 1996, Pudong New Zone People’s Court in Shanghai was hearing the case as for registered trademark ‘flying eagle’ filed by Shanghai Gillette Co. Ltd. It was authorized by Shanghai Municipal Higher People’s Court following provisions of the Civil, Administrative and Criminal Procedure Law. The special tribunal for IP heard the case in a unified mode, which initiated the mode of “three-hearing–in One” for IP cases.^[15] In 2009, the Supreme People’s Court enacted the “Third Five-year Reform Program of the People’s Court (2009-13),” which clearly stated that municipalities directly under the central government and large and medium-sized cities shall explore and set up comprehensive tribunals for IP cases.^[16] Up until 2015, a total of six higher people’s courts, 95 intermediate people’s courts and 104 basic people’s courts had carried out the experimental work and developed a variety of trial modes in practice, including the mode of Pudong, Nanshan, Fujian, Wuhan, Chongqing and Xi ’an.^[17]

The second is the advantages of the “three-hearing-in-one” Mode. It can effectively improve the low efficiency, conflicting judgments, jurisdiction conflicts and other problems in hearing IP cases.

In China, according to the Provisions regarding the Division of Hearing Administrative Cases with regard to Approval and Confirmation of Patent, Trademark issued by Supreme People’s Court’s, the first instance of civil cases involving IP is usually under the jurisdiction of the intermediate people’s. Instead, the first hearing of criminal cases involving IP is usually under the jurisdiction of the grassroots people’s court, while the first instance of administrative cases of a trademark, patent caused by approval procedures are usually heard by Beijing Municipal First Intermediate People’s Court. The inconsistent jurisdiction distribution of the three types of cases may result in different judgment for the same case if the case involves civil and criminal or civil and administrative factors at the same time. It leads to different level of jurisdiction and different courts in charge. As a result, the “three-hearing-in-one” mode is not only beneficial to the internal unification of jurisdiction within the court, but also more conducive to handling the conflicts in communication and job coordination between the same or different level of administrative law enforcement authorities, public safeguard department as well as procuratorial departments so as to rationalize hierarchy.

Due to the different legal systems with different values between civil, criminal and administrative litigation procedures, if IP cases are heard in different tribunals, conflicts would happen with each other, which may seriously affect judicial authority. Although the judgment of criminal punishment with civil adjudication can meet the requirements of efficiency of lawsuit, e.g., the criminal tribunal has in fact exceeded its power in dealing with the civil cases. Therefore, the mode “three-hearing-in-one” can overcome the problems such as delay in procedure and inconsistent criteria due to the lack of communication between different tribunals. The collegial panel can make comprehensive judgment based on the civil, criminal and administrative aspects of the case by making comprehensive use of legal knowledge so as to develop three-dimensional judicial protection of IP as a whole.

The third is the lack of basis for legitimacy which would happen in the practice of “three-hearing-in-one.” The integrated hearings of civil, criminal and administrative cases involving IP is a break-through of the current rigid regulation with regard to the division in acceptance and hearing of cases in civil, criminal and administrative litigation law. However it would somehow mess the territorial and procedural jurisdiction about case hearing. In fact, such judicial reform is as good as a pilot administrative project which breaks through the frame of relevant current laws.^[18]

Another concern is non-consistent pattern in different regions and non-systematic reform. E.g., ‘Pudong mode’ as the first pilot has truly realized the goal of combining the hearing of civil, criminal and administrative IP cases in one tribunal. In Fujian Province, however, only “two-hearing-in-one” is carried out, i.e., only IP cases which are civil and administrative are heard in one tribunal, while the criminal part of those cases is still categorized into ordinary criminal cases under the critical jurisdiction. The Xi’an mode is much looser. In the trial of IP cases featured by criminal and administrative, civil judges are introduced to explore “the unity of trial” in IP cases.^[19] Currently, the “three-hearing-in–one” pilot work is mainly practiced by grass-root courts and the intermediate people’s court. By the end of 2014 only five higher people’s courts practiced the pilot work and even the IP tribunal of the Supreme People’s Court trial had not practiced “three-hearing–in-one” yet. Accordingly, the hearing for the first instance is conducted by IP tribunal, but that for the second instance is still done by different divisions, respectively. As a result of different starting point of reform, different mode is applied by different places. Because unifying the trial and jurisdiction of cases is missing and the reform is not yet fully systematized, the application of consistent criteria of legal enforcement, integration of judicial resources and improvement of efficiency of hearing cannot become true in a fundamental sense.

The strategic consideration in setting up IP courts in China is largely deepening the reform in trial mode of “three-hearing-in-one” for IP cases. Basically, IP courts and trial mode of “three-hearing-in-one” are in the pursuit of specialization of trial.^[20] China has earned more experience to build IP courts by exploring the hearing mode of “three-hearing-in-one.”

 

B. Policy Background

 

1. Implementing the National IP Strategy for Innovation

Article 45 of Outline of the National IP Strategy stipulates:

 

Improve the trial system for IP, optimize the allocation of judicial resources and simplify remedy procedures. Studies shall be carried out on establishing special tribunals to handle civil, administrative or criminal cases involving IP. Studies also need to be done to reasonably centralize jurisdiction over cases involving patents or other cases of a highly technical nature. Explore issues on setting up courts of appeal for cases involving IP. Judicial organs for handling cases involving IP need to be further strengthened and well-staffed to improve the handling of cases and enforcement of law.

 

Action Plan for the In-depth Implementation of National IP Strategy (2014-20) clearly put forward that the in-depth implementation of national IP strategy is an important support and guarantee for comprehensive deepening of reform and an important measure to promote upgrading of the economic structure, strengthening the civil and administrative trial involving IP and create good environment for innovation.[21] According to the plan on setting up IP court, building and running of IP courts will be financed and supported.[22]

While implementing national IP strategy for constructing an innovation-oriented country, strengthening of judicial protection of IP is a critical step. In this course, setting up IP court indicates strengthening judicial organizations of IP, optimizing allocation of judicial resources and adapting to the specialization and centralization of hearings involved in IP.

 

2. Herald of China’s Reform in Judicial System

The Decision of Deepening the Reform, adopted at the third plenary session of the 18th Central Committee of the Communist Party of China, determined the major tasks of constructing the advanced rule of law in China and deepening the reform of judicial system. Decision of Some Major Issues regarding Comprehensively Advancing the Rule of Law in China, adopted at the fourth plenary session of the 18th Central Committee of the Communist Party of China, has set the building of socialist legal system with Chinese characteristics and the construction of socialist rule of law as the overall goal of promoting the rule of law in China and presented a series of major reform measures in the aspects of scientific legislation, strict enforcement of laws, impartial justice and law-abiding by all nationals.[23]

To implement the above decisions, the Supreme People’s Court formulated its Opinion Regarding Comprehensive Deepening of the Reform of the People’s Court on February 26, 2015, and implemented it as “the Fourth Five-year Reform Program of the People’s Court (2014-18).”[24] According to this Opinion, one of the Supreme Court’s tasks is “to promote the setting up of IP court and establishing and improving the specialized procedures, jurisdiction system and trial rule which conform to the law of hearing IP according to the characteristics and requirements for IP cases.”[25]

The Framework Views on Some Issues on Pilot Reform of the Judicial System (hereinafter Framework Opinion) approved at the third meeting of the Leadership of Comprehensive Deepening Reform of Central Committee Group mainly put forward to policy guidance about the following issues:

 

1. The administrative system eligible for the judges and procurators is different from the management system for ordinary civil servant;

2. A system of post for judges and procurators should be established;

3. The conditions and procedures on which selection and appointment of judges and procurators is based shall be improved and the principle of “placing cadres under party supervision” shall be adhered to and respect should be shown to the rule of justice to ensure the political quality and professional ability of the group;

4 The responsibility system of case handling should be improved and the judicial transparency should be intensified to strengthen the supervision and restriction mechanism;

5 Strengthening the job safeguard system for the judges and prosecutors is appropriate to their legal responsibility; and

6 The unified management of human resources, finance and material of courts and procuratorate should be promoted below provincial level. ^[26]

 

During the establishment of IP court in China, the following aspects have been practiced to meet the requirements of reform of the judicial system.

The First is the Management of Judicial Personnel by Classification. It is a management system to divide the staff of courts and procuratorates into judge (or procurator), judicial administrative, judicial assistants, as well as to treat judges (procurators) in a different way from the ordinary civil servants. Establishment of the post system of judges and prosecutors is the basis for the management of judicial personnel by classification.[27] In selecting judges and prosecutors, particularly, the procedure should be open and fair, and the entry threshold should be enhanced.

The IP court are composed of judge, judicial support staff, and judicial administrative personnel. There are four types of judicial support staff in IP court: the judge assistant, technical investigator, the court clerk and judicial police. In IP courts, judge assistant takes the place of assistant judge. The main responsibilities of judge assistant include: preparing legal materials before hearing, arranging for the evidence exchange and cross-examination of preliminary evidence, clarifying the focus of the dispute and implementing mediation before hearing under the authorization of court judge. S/he is entitled to participate in the hearing and request the presiding judge to ask questions as auxiliary right of investigation. In addition, s/he has the right to assist the judge to draft legal documents such as judgment or ruling, etc.^[28]A technical investigator is judicial support staff peculiar to IP court. His/her main task is to provide technical support and professional advice for judges about professional and technical issue.[29]

The second is the judge selection system of IP court. According to the Framework Opinions, professional ability will be the core element in selecting judges and prosecutors. The selection committee which is broadly representative will nominate candidates of judges and prosecutors. The selection committee will widely employ all types of participants in IP cases so that there are not only experienced judges and prosecutors but also professional lawyers and senior legal experts. Also, the channels of candidates should be expanded to select the judges and prosecutors with abundant judicial experience and excellent judicial capability.

On October 28, 2014, the Supreme People’s Court issued the Guidance for Selection of Judges for IP Courts (trial version). It stipulates the qualifications of the judges for IP courts as follows:

 

Minimum Level-four qualification as senior judge; six years’ experience in relevant judicial hearing; bachelor degree or above in Law Major from standard institutions of higher learning; strong ability in presiding court hearing and drafting judgment documents.^[30]

 

Obviously, IP court judges are more highly and strictly demanded than other court judges in specialization and professionalism.^[31]

All the eighteen judges in the newly set up Beijing IP Court have been selected from the seventy-one IP judges in three intermediate people’s courts in Beijing by the selection committee. The selection committee is also the first judge selection committee nationwide. In Guangzhou IP Court, the judge selection committee is made up of twenty-five members, including sixteen judges, three law professors, three lawyers and three other experts of IP.^[32]

The third is the post system for judges. The number of judges in IP court is much smaller than other courts. In Beijing IP Court, e.g., there are eighteen presiding judges, ten in the Shanghai IP Court, and ten in Guangzhou IP Court. Both associate chief judge and assistant judges of tribunals no longer exists so that the presiding judge and collegial panel are dominating the hearing. The presiding judge responsibility system is stressed to create a good atmosphere for judges to exercise the judicial power independently under law.

As put by Chuang Wang, the vice chief judge of IP Tribunal of the Supreme People’s Court, setting up IP court is the important system of judicial protection of IP in China and the explorer and pioneer of China’s reform of the judicial system, hence, how it works on the whole has a significant impact on the future direction of judicial system of China.^[33]

 

IV. IP Court System in China

A.         New System of Jurisdiction over IP Cases

 

1. The Territorial Jurisdiction

The first instance cases are under the jurisdiction of IP courts in Beijing, Shanghai and Guangzhou. They mainly include the following three types. The first type covers technical civil and administrative cases such as those of patent, new varieties of plant, layout design of integrated circuit, technical secrets and computer software. The second type are administrative cases against the administrative behaviors involving copyright, trademark and unfair competition made by the state council or local people’s governments or above. And, the third type includes civil cases involving recognition of well-known trademark.^[34]

 

2. The Cross-District Jurisdiction

The Guangzhou IP Court will have the jurisdiction over civil and administrative cases in the first instance in Guangdong Province involving patent, new plant varieties, layout design of integrated circuit, technical secrets, computer software technology, as well as civil cases involving recognition of well-known trademark.^[35]

By the end of 2014, the quantity of patent owned by entities in Guangdong was more than 110,000, accounted for one-sixth of the whole country, marked top 1 in China. In 2014, half of the PCT international applications examined by SIPO were from Guangdong Province. Among the top 10 enterprises owned invention patent in 2014, there were 5 enterprises located at Shenzhen City of Guangdong Province.[36] In this sense, Guangdong Province may be evaluated as a national leader in ownership, quantity and quality of IP. Guangzhou is the capital and central city of the province, which set up IP court with jurisdiction over the province’s technical civil and administrative cases. In particular, civil cases involving well-known trademark based on the administrative division is in line with the objective demand for economic development in the Pearl River Delta Economical Region. Also, the exploration of pilot cross-regional jurisdiction of IP courts in Guangzhou is of positive realistic significance for the reform in the cross-regional jurisdiction of the IP court across divisions in the future.

 

3. The Exclusive Jurisdiction

Article 5 of the Provision of Jurisdiction provides that the following cases of the first instance will be under exclusive jurisdiction of the Beijing IP Court:

 

1. Those against the decision, ruling or approval of relevant patent, trademark, new plant varieties, layout design of integrated circuit and other IP by the department under the State Council;

2. Those against the ruling about compulsory licensing decision and the compulsory licensing fee or compensation decision about the relevant patent, new plant varieties and integrated circuit layout design issued by the departments under the State Council; and

3. Those against other administrative act relating to IP authorization made by the departments under the State Council.

 

B.          The Institutional Setup and Personnel Configuration

There are some differences of institutional setup in the three IP courts. The Guangzhou IP Court is divided into tribunal of patent, tribunal of copyright, and tribunal of trademark & unfair competition. It also organizes a relatively fixed hearing team of 1 judge, 1 or 2 assistant justice and 1 court clerk. The presiding judge is unstable to court. There are some differences from that in Beijing where IP court falls into 5 tribunals: filing chamber, hearing tribunal 1, hearing tribunal 2, hearing tribunal 3 and hearing supervision tribunal.[37] Obviously there is no difference in terms of case type between the hearing tribunals in Beijing IP Court. The hearing tribunals of IP court in Beijing only have chief judge and no associate chief judges. Hence, the hearing team is relatively fixed with 1 core judge, 1 judge assistant and 1 court clerk. In this way, the number of management level is reduced. The Shanghai IP Court and the Third Intermediate People’s Court of Shanghai are set up based on the original Shanghai Railway Transport Intermediate People’s Court. Both share the office, but practice under the principle of “judicial independence in the same administrative office.”[38] Namely, the hearing and management of the Shanghai IP Court remain independent, but other tasks will be shared with the Third Intermediate People’s Court of Shanghai. Currently, the first and second tribunals are set up for IP cases, and technical investigation division will be established soon. Other issues including filing, implementing and integrated management are borne by the Third Intermediate People’s Court of Shanghai.[39]

The number of judges has been reduced. Today, there is not assistant judge and associate chief judges anymore. Conversely, however, technical investigator and judge assistant are added as judicial support. The staffing shows its characteristics of “precise organization and flat management.”[40]

 

C.         Technical Investigator

When technical aspect of the case is point at issue, the judge may entrust a third party to carry out technical identification based on the entrustment of both parties. In this regard, contradictory appraisal report may appear about the same case. It not only brings about the delay of proceedings and lower efficiency, but also do harm the judicial authority of the judge. Moreover, the neutrality and correctness of previous appraisal may be on the suspicion.

Regarding technical issue, many countries would have technical staff for assisting judges during the trial by the examination. E.g., Japan established the technical investigator and expert committee system on April 1, 2004 for IP cases.^[41] In Korea, the patent court has the position for technical reviewer dispatched by the Korean IP Office who will participate in the hearings of all procedures and provide a written opinion to the judge. Technical reviewer, however, will not be involved in judgment.^[42] According to the German Patent Law, the German Federal Patent Court maintains both legal judges and technical judge. The technical judge has a unique position in German court system enjoying the same legal status, rights and obligations as legal justice. The German Federal Patent Law provides a high standard of qualification for technical judges and in practice they are usually selected from the technical inspectors of German Patent Office.^[43]

In China, the newly set up IP courts have introduced the technical investigator system. Before then, the technical cases often depended on advice of expert witnesses, judicial identification, opinions from technical expert database to consult technical issues. On December 30, 2014, the Supreme People’s Court issued the Interim Provisions of Some Issues Regarding the Participation of Technical Investigator in Litigation of the IP Courts (hereinafter Interim Provisions). The Interim Provisions has a total of ten articles describing the scope, job responsibilities and role of technical review opinions about technical cases of technical investigator, which helps technology technical investigator a precise guidance to participate in the litigation activities.[44]

 

1. Positioning of the Technical Investigator

The first article of the Interim Provisions has made it clear that technical investigator are judicial support staff which means that: firstly, technical investigator of IP are the staff of the court, which is different from the auxiliary technical experts invited by both parties of the cases or technical consultants entrusted by courts. Secondly, the technical investigator has no right of hearing and is a judicial support personnel like judge assistant, different from the technical judge in the Patent Courts of Germany and other countries.^[45]

 

2. Responsibilities of Technical Investigator

Considering the characteristics of IP cases, Article 6 of the Interim Provisions has specified the concrete responsibilities of technical investigator in the litigation. According to the requirements of the judge, the technical investigator will carry out the following duties: 

 

1. By accessing litigation documents and evidence materials, he shall clarify the focus of the technical fact about the dispute;

2. Make suggestions about scope, sequence and methods of the survey of technical facts;

3. Participate in the investigation, inquest and safeguard and present suggestions about the methods, steps, etc.; 

4. Participate in inquiry, hearing and court trial;  

5. Offer opinions of technical review and attend the review by collegial panel;

6. Assist the judge to organize appraisers and professionals in related technical field to prepare appraisal and advice if necessary; and

7. Perform other related jobs assigned by the judge.[46]

 

3. The Legal Force of Technical Review’s Opinions

Article 9 of the Interim Provisions stipulates: “The technical investigator’s opinion of technical review can be a reference for the judge to identify technical facts.” This means that the opinion of technical review shall not be used as evidence but only serve as the reference for the judge to identify technical facts.

On October 22, 2015, the Beijing IP Court constituted technical investigation office and appointed the first batch of investigators. Statistics shows that, after the establishment of the technical investigation office, a total of 12 cases are involved in technical investigators, all of which are patent administrative cases.^[47] The Shanghai IP Court is exploring the establishment of Technical Fact-finding and Identification System which contains technical survey, technical advice, expert jury, technical appraisal. Meanwhile, it and has appointed 11 investigators to set up the investigator team. A total of 38 expert advisory activities and 8 expert juries have been carried out in 2015.^[48]

 

V. The Role of IP Courts for IP Case Hearing in China

A.         Unification of Trial and Judicial Organization

Today, leading IP countries in the world would have special provisions for the trial and jurisdictions of IP cases.^[49] This systematic specialization of IP may come from the nature of public welfare and professionalism.^[50] IP would entitle monopoly for private to meet the social demand and inspire innovative activities within a certain period of time in a certain region. IP also bears the nature of public as well as private right. “Its nature of public welfare requires judicial protection to contain procedural contents which differs from the contents of private right protection and the judgment in the results should be highly unified.”^[51] The technical and professional nature of IP have presented even higher demands for judges. The trial activities, especially the cognizance of facts, usually require that judges have relevant technical professional knowledge in the field. To satisfy those requirements, the only solution is the unification of specialized way of trial and judicial organization.

Now China has set up the first group of three IP courts in Beijing, Shanghai and Guangzhou. In terms of hearing level, they are all courts of first instance and appellate court in jurisdiction of highly technical civil and administrative cases of the first instance involving patents, new plant varieties, layout design of integrated circuit, technical secrets and computer software. In these cases, technical investigators would often assist judges in identifying the facts and administrate the highly technical cases collectively. The appeal cases involving copyright, trademark, technology contract, unfair competition and other appeals will be heard by the IP court uniformly for the sake of judicial efficiency and judicial cost. Simultaneously, supervision can also be undertaken on the second trial so as to achieve the goal of unifying judgment standard of the first instance, while considering both efficiency and fairness.

 

B.          IP Protection for Innovative Country

China already upgraded the IP to the prominent status of the national strategy in 2008.[52] In 2012, the “development strategy driven by innovation” was put forward.[53] Since China’s reform and opening to the outside world, great progress has been made in various social and economic aspects. In the international context, however, IP has become the essential factor for national development and global competition. Therefore, the effective protection of IP has become the key factor for building an innovation-oriented country.^[54] In this course, IP court will improve the enthusiasm of innovators, transformation workers and users and develop the virtuous cycle of “innovation- transformation-earning-innovation.”

 

C.         Reformation of IP Courts in China

China is reforming IP courts comprehensively. These include the classified management system of the judge, the judicial support staff and the administration personnel, opening judicial measures, highlighting the position of the presiding judge and implementing the responsibility system of the presiding judge. In addition, the judges of newly set up IP court are not related with administrative level, which requires the so-called “de-administration of justice” in China. One of the important tasks in the judicial system reforms is to “explore to set up courts across administrative divisions” and build a new litigation pattern to handle the common type of cases in local courts and special cases in “courts across administrative regions.”^[55] IP courts are under interregional jurisdiction, especially in Guangzhou. Here, IP courts enjoy the jurisdiction over IP cases across various regions of Guangdong Province.

Some scholars pointed out that the exploration of the IP courts in China is a test in the highly professionalized field in which staff is of distinctive personality.[56] It is a path to the comprehensive reform of the judicial system. IP courts can apply new measures for the judicial system reform on a higher platform. Hence a breakthrough can be achieved in the concrete judicial mechanism and lawsuit system. In this sense, it could be a pioneer of whole judicial reforms in China.^[57]

 

D.        Respecting and Protecting IP

As the second largest economy in the world today, China has a long way to go for the IP protection. Considering the massive amounts of IP litigation encountered by Chinese enterprises under the WTO mechanism, non-tariff barriers as well as the memorandum of understanding between Chinese and the US on the protection of IP, the international community to some degree, mistrust the IP protection in China. In order to be a leading IP power in the world, China should not only own a large number of excellent patents and trademarks, but also make efforts for cultural boom in the field of IP. China has indeed made gorgeous achievements in building the IP legal system. In 2013, the third amendment of the Trademark Law of the People’s Republic of China was adopted and the fourth modification of Patent Law is going on and the third revision of Copyright Act is in progress. The IP laws got multiple revisions. It would not only comply with the international convention, but also in some respects take the lead in the world. In contrast, the judicial ability and proficiency of law enforcement need to be improved. With IP courts, China has determined to improve the international image of respecting IP. Also, the IP courts in China would be a good example for judicial specialization in IP for the rest of the world.

 

VI. The Operation of IP Courts and Its Countermeasures

 

A.         The Imperfect Job Safeguard for Judges 

Due to the judge post system in IP courts, the number of IP judges has decreased dramatically, while the quantity of cases is growing. Another problems should be noticeable including huge job burden, great responsibility, low salary, limited space for promotion, etc. In Guangdong IP courts, e.g., only twenty-six judges applied, only eleven passed the review of qualification, and ten of them were a finally appointed by judge selection committee of IP court, which is well below forecasts.^[58]

Introduction of job safeguard system for judges should be thus speeded up with the improvement of income level  in order to build a team of judges and support staff of high quality. At the same time, the channels and space of promotion for young judges and judge assistants should be ensured so that the loss of judicial personnel be prevented to truly implement the judicial reform.

 

B.         Disputes Settlement Mechanism of IP Approval and Cycle Litigation

To a certain extent, the current dispute settlement mechanism of IP approval are not consistent with the final judicial principle for civil disputes and the pursuit of litigation economy and efficiency.

The current administrative litigation process of IP cases is in fact taking the disputes of approval involving the invalidation of patents and the opposition of trademarks which occurs among clients of equal parties and concerns validity of civil rights as administrative litigation. The ruling as to the IP approval is in essence the judgment about the effectiveness of the civil rights so that the kernel of the court hearing shall be the dispute of civil rights and interests. Meanwhile, it is a serious waste of resources for the Patent Re-examination Board and Trademark Review and Adjudication Board to be the defendant frequently and respond. This seriously affects the trial efficiency of the case because even if the two committees make the obviously wrong decision or ruling, the people’s court can usually or partially revoke the decision of verdict and the dispute concerning approval of patent and trademark cannot be solved in essence in judicial judgment.[59] After revocation by the people’s court, the two committees have to make the decision once again. If both parties refuse to obey, they can file a lawsuit about the new decision and hence a litigation cycle forms.[60]

It is common for courts to confirm the effectiveness to handle IP cases in the world. In the US, as the principle of judicial final is working in practice, courts have the power to determine directly the effectiveness of the patent or trademark granted by administrative authority.^[61] In 2004, by amending the Patent Law, Japan allowed the court to determine the invalidity of the patent is in lawsuit of patent infringement. Although such decision is only effective between the parties concerned, Japan’s position identified in the lawsuit can be quoted in other cases, i.e., the invalidity recognition in individual case may have universal validity. Taiwan’s IP Court is also authorized to identify invalidity so that in a civil lawsuit judges need not wait for the decision of administrative process, but straightly determine the validity of the patent or trademark rights. The IP holder can still claim for other rights in litigation.^[62]

In a national symposium on the performance of IP courts in 2015, the Beijing IP Court proposed to establish the judicial right to change the authorization and approval in administrative cases.[63] It means that the court can make explicit judgment about whether certain IP in the lawsuit is invalid and whether it can be registered or cancelled in order to avoid litigation cycle and protracted disputes.

 

C.         The Three-hearing-in-one Mode Not yet to Realize

As early as in 1996, China began to explore the mode of “three-hearing-in-one” in IP cases. As of 2014, a total of five higher people’s courts and ninety-four intermediate people’s courts have carried out the pilot “three-hearing-in-one” and found a variety of modes in practice. However, the mode and mechanism thereof have been appealed for by many experts and insiders of IP and finally have not been implemented in this trial reform of IP. The newly established IP courts mainly accept civil and administrative cases of IP and only “two-hearing- in-one” was practiced. The reasons why criminal cases of IP are excluded out of the scope of the IP courts’ jurisdiction might be as follows:

One is out of practical need. Every year from 2012 to 2015, more than one hundred thousand IP cases were received in China and this figure keeps rising year by year. The number of criminal cases involving IP is considerably smaller and accounted for not more than 10 percent of the total. Compared with the civil cases, the number of administrative cases is much smaller. In 2012 and 2013, fewer than 3000 administrative cases related to IP were accepted. Although doubled in 2014, it has never exceed 10000.[64] They have been included in the jurisdiction of IP court mainly because of the different orientation of function of the newly formed IP courts. As the Patent Re-examination Board of China, the Trademark Review and Adjudication Board and State Intellectual Property Office are located in Beijing, the Beijing IP Court will give priority to hearing the patent, trademark and administrative cases involving authorization and approval.   

According to statistics, the Beijing IP Court accepted 221 cases within a month after establishment, in which 138 were related to patent, and trademark authorization, accounting for 63.01 percent of the total number of cases.^[65] Guangzhou and Shanghai IP courts focus on the patent infringement cases and other civil cases. Neither accepts patent or trademark cases related to authorization. Considering that the vast number of administrative cases concentrate in Beijing, therefore, the requirements will come to centralized jurisdiction and judicial specialization to practice “two-hearing-in-one” in civil and administrative cases. The criminal cases are widely distributed and there are only very few for each court. The Beijing First Intermediate People’s Court, e.g., heard only 6 criminal cases out of the total 10,000 cases in 2013.^[66]

The second reason involves the particularity of criminal cases. Compared with civil and administrative cases of IP, it is more difficult to promote the mode of “three-hearing-in-one” in hearing criminal cases of IP. In the current exploration of “three-hearing-in-one,” as criminal cases involve court, department of public security and procuratorial, etc., the coordination between multilateral institutions is necessary. Therefore, it is the key point as well as main difficulty to involve criminal cases into the “three-hearing- in-one” mode.^[67] Besides, criminal proceedings quite differ from civil and administrative ones. It is thus not yet the right time for criminal cases of IP to be heard by IP court.

Since 1996, the courts in Shanghai have implemented “three-hearing-in-one” mode-unified hearings of civil, criminal, administrative cases involving IP. This practice proved that “the three-hearing-in-one” mode is conducive to unifying legal standard of enforcement, improving judicial efficiency and strengthening the protection of IP. However, the newly established Shanghai IP Court only practices “two-hearing-in-one” mode which combines civil and administrative cases. It is disadvantageous for the hearing mechanism.

The Shanghai IP Court tried to solve this problem in practice. First, the Shanghai IP Court send its officers to the Third Shanghai Intermediate People’s Court for the hearings of IP criminal cases. The “three-hearing-in-one” mode is actually carried out in the Shanghai IP Court by this way.^[68] If IP court has rich experience in practice, the criminal cases of IP are expected to be brought into the jurisdiction with the “three-hearing-in-one” mode.

 

D.       Special Appellate Court for IP

As early as in 2008, China already proposed “to set up IP appellate court” in the Outlines of National IP Strategy.[69] In the Decision on Major Issues concerning Comprehensively Deepening Reforms of 2013, the goal was modified to “explore the founding of IP courts.”[70] It means that the Chinese IP court to be built is not limited to the appellate court on the case-hearing level.

Because of China’s courts practice called “second - instance - being - the - final - instance system,”[71] the first instance cases at IP court will be appealed to the IP tribunal of the local higher people’s court. The court of first instance is specialized courts, whereas the second instance court is ordinary court. Meanwhile, the local higher people’s court which makes the final decision is still at the local level so that such issues as inconsistency of judgment standard and different judgment for similar case remain an issue. Obviously, the previous disadvantages restricting the hearing of IP cases in China are still there.

In this context, Prof. Chuntian Liu, Chairman of Chinese IP Law Society (“CIPLS”) said that IP appellate courts should be set up and the reform of the judicial organization of IP in China should not only stay at the level of ‘local team.’[72] Instead, he continued, a qualitative change of ‘national team’ is necessary, otherwise the reform will just stop at quantitative change and the fundamental problem will remain.[73] As the establishment of a special court system in China is still on-going, setting up IP courts and practicing trans-regional jurisdiction at the level of intermediate court will give trial experience until the IP appellate court is actually established.^[74]

The authors would opine that, on the basis of domestic practical experience, China can refer to the dual level court structure of Unitary Patent Court for Europe and set up special appellate court for IP in nationwide. In this way, the inconsistent results about infringement on European patent will be greatly improved.

The authors also think that, after setting up the first three IP courts, China can set up more IP courts at the equivalent level to the intermediate people’s court and practice trans-regional jurisdiction. Then, an appellate court equivalent to the level of higher people’s court could be established in Beijing to guide the national IP courts and unify judgment standard of first-instance. Considering the limited judicial resources and convenience for the appeal of clients, the IP appellate court may set up detached tribunal in the regions where cases are centralized or adopt the assizes.

 

VII. Conclusion

 

The establishment of IP court is a landmark of judicial protection of IP in China.^[75] China has determined to strengthen the protection of IP in a global standard towards an innovation-oriented country. China’s IP court is a mirror showing the latest trend of judicial protection of IP and each specific measure for the judicial system reform of China.

The IP court was established in the period of social transition with both opportunities and challenges are there. The challenges comes from the trial system of IP; comprehensive judicial reform; and economic development of China.^[76] China’s IP court will make unique contribution to a more perfect IP judicial system with higher level of judicial protection of IP.

 

---

^∗ This paper is supported by the Training Support Program for Outstanding Middle &Young Teachers, China University of Political Science and Law(CUPL).

^∗∗ Vice-Chairman, China IP Law Society （CIPLS）; Member of the Experts Commission of Works of Case Guidance, and Research Fellow, Research Center for Judicial Protection of IP of the PRC Supreme People’s Court; Director & Professor of Law at the Institute of IP Law of CUPL. member of Professional Intellectual Property Committee of China Attorney-at-laws Association; member of the Theory of Intellectual Property Trial of China Judicial Research Association;  Attorney-at-law of Beijing Tianchi Juntai Law Firm; Arbitrator of Beijing Arbitration Commission, as well as Shenzhen Arbitration Commission and Nanjing Arbitration Commission. Prof. Feng obtained the Second National Ten Outstanding Young and Middle-aged Jurist Nomination Award(in 1999), and owned the award named Ministry of Education New Century Excellent Talents Support Program(in 2012). He was also awarded the outstanding contribution of middle and young-aged experts in the National Millions of Talent Projects(in 2014). Ph.D.at law (Peking University, Beijing, China). ORCID: http://oricd.org/0000-0002-5902-7019.The author may be contacted at: fengxiaoqingipr@sina.com / Address: Institute of Intellectual Property Law, China University of Political Science and Law(CUPL), No.25, Xi Tu Cheng Road, Beijing, 100088, P. R. China.

^∗∗∗ Attorney-at-Law (ZY Partners-Beijing). LL.M.(CUPL). Executive Editor of Newsletter of IP, CUPL. ORCID: The author may be contacted at: 295541907@qq.com. / Address: ZY Partners, Kuntai International Plaza, Suite 2606, 12 Chaowai Street, Chaoyang District, Beijing 100020, P. R. China.

[1]Xiaoqing Feng, Research on IP Litigation (知识产权诉讼研究). Changsha: Press of Central South University of Technology (1997).

[2] It means an independent IP tribunal has jurisdiction over civil, administrative and criminal cases of IP. See the concrete analysis in the next parts. 

[3]Xiaoming Xi, Policies and Ideology of Current Judicial Protection of IP (当前我国知识产权司法保护的政策与理念), IP, 2012 (3), p. 3-10.

[4]Handong Wu, Evaluation and Reflection of the Legal Construction of IP in China (中国知识产权法制建设的评价与反思), China Legal Science, 2009 (1), p.51-68.

[5]Handong Wu, Three-Hearings-in-One: The Special District Mode of Judicial Reform of IP (“三审合一”：知识产权审判改革的特区模式) (Nov. 24, 2011), Daily of People’s Court.

[6]Xinliang Tao, Some Ideas about the Setting up of IP Court (建立知识产权法院的若干思考) (July 16, 2014), Daily of Rule of Law in Shanghai.

[7] See Part VI. The Operation of IP Courts and Its Countermeasures and accompanying text.

[8]The Judicial Protection of IP by Courts in China in 2015, State IP Office of the P.R.C (Apr. 22, 2015), available at (available at should be italicized in the following) http://www.sipo.gov.cn/ztzl/ndcs/qgzscqxcz/xwfb/201604/t20160422_1264240.html  (last visited on August 5, 2017.

[9]Xiuting Yuan, Vision of IP Court in China and Its Implementation Pat (中国知识产权法院的愿景及其实现路径), Science-Technology and Law, 2015-1, p. 22-39.

[10] Boming Wu, Suggestions for Setting up IP Court in China (关于在我国设立知识产权法院的建议), IP, 2011- 3, p.3-4.

[11]Outline of National IP Strategy (国家知识产权战略纲要), SIPO website, available at http://www.sipo.gov.cn/ztzl/ywzt/zlwzn/xgljt/201306/t20130604_801744.html  (last visited on August 5, 2017).

[12] It was adopted at the Third Plenary Session of the 18th Central Committee of the Communist Party of China on 12 November 2013. The Central People’s Government of the PRC. Website, available at http://www.gov.cn/jrzg/2013-11/15/content_2528179.htm  (last visited on August 5, 2017).

[13]The Judicial Protection of IP by Courts in China in 2012 (2012年中国法院知识产权司法保护状况), China Court Website (Apr. 22, 2013), available at http://www.sipo.gov.cn/wqyz/gndt/201310/t20131025_858974.html ; The Judicial Protection of IP by Courts in China in 2013 (Apr. 25, 2014), available at http://www.court.gov.cn/zscq/bhcg/201404/t20140425_195314.html ; The Judicial Protection of IP by Courts in China in 2014 (Apr. 20, 2015), available at http://www.court.gov.cn/zixun-xiangqing-14207.html ; The Judicial Protection of IP by Courts in China in 2015 (Apr. 22, 2015), available at http://www.sipo.gov.cn/ztzl/ndcs/qgzscqxcz/xwfb/201604/t20160422_1264240.html  (all last visited on August 5, 2017).

[14] Mianqing Wang, The Three-in-one Hearing Mechanism of IP Court (知识产权法院的“三审合一”审判机制), Daily of Rule of Law in Shanghai, Aug.6, 2014.

[15] Xinliang Tao, Some Ideas about the Setting up of IP Court (建立知识产权法院的若干思考), Daily of Rule of Law in Shanghai, July16 2014.

[16]The Judicial Protection of IP by Courts in China in 2015 (2015年中国法院知识产权司法保护状况) (Apr. 22, 2015), available at http://www.sipo.gov.cn/ztzl/ndcs/qgzscqxcz/xwfb/201604/t20160422_1264240.html (last visited on August 5, 2017)

[17]Id.

[18] Shuzhu Hu, On Establishment of the IP Courts (tribunal): the Rational Thinking of the Judicial Reform of Hearing Involving IP in China (试论知识产权法院（法庭）的建立——对我国知识产权审判体制改革的理性思考), IP, 2010-4, p. 37-42.

[19]Xiaojin Zhang, Three-Hearing-in-One: A Research of the Mode Operation for Hearing IP Cases – with the Example of Hearing Tribunal of Beijing IP Court (三审合一：知识产权案件审判模式运行研究——以北京市法院知识产权审判庭为例), Arbitration in Beijing, 2013-82, p. 32-44.

[20]Xuemei Cheng and Peiyu He, Examination and Reference of European Unified Patent Court, and the Path of Building China’s IP Court (欧洲统一专利法院的考查与借鉴——兼论我国知识产权法院构建的路径), IP, 2014-4, p. 89-94.

[21]Action Plan for the In-depth Implementation of National IP Strategy (2014-2020) (深入实施国家知识产权战略行动计划(2014-2020年)), Xinhua Net, available at http://news.xinhuanet.com/fortune/2015-01/04/c_1113870665.htm  (last visited on August 5, 2017).

[22] Article 4 of Action Plan for the In-depth Implementation of National IP Strategy (2014-2020). Id.

[23] Decision of Some Major Issues regarding Comprehensively Advancing the Rule of Law in China (中共中央关于全面推进依法治国若干重大问题的决定), Xinhuanet, available at http://news.xinhuanet.com/politics/2014-10/28/c_1113015330.htm  (last visited on August 5, 2017).

[24] Opinion Regarding Comprehensive Deepening of the Reform of the People’s Court (最高人民法院关于全面深化人民法院改革的意见), The Supreme People’s Court website, available at http://www.court.gov.cn/zixun-xiangqing-13520.html  (last visited on August 5, 2017).

[25] Id.

[26]Xianming Zhang, Stick to the Combination of Top-Level Design with Practical   Exploration and Proceed with Pilot Reform of Judicial System (坚持顶层设计与实践探索相结合 积极稳妥推进司法体制改革试点工作), Dairy of People’s Court, Apr.16, 2014.

[27] Nannan Li, Judicial Reform: the Change and Confusion of Judges (司法改革：法官的改变和困惑), available at http://legal.people.com.cn/n/2014/1104/c42510-25966822.html  (last visited on August 5, 2017).  

[28] Nianzu Shen, The first IP court in China founded, assistant judge is cancelled (全国首家知识产权法院成立 取消助理审判员)(Nov. 15, 2014), P5W website, available at http://www.p5w.net/news/gncj/201411/t20141115_837280.htm (last visited at August 5, 2017)

[29] Id.

[30] Notice of Supreme People’s Court about Guidelines for Selection of Judges for IP Court (trial) (最高人民法院关于印发知识产权法院法官选任工作指导意见(试行)的通知) (Oct. 28, 2014), China Court Website, available at http://www.chinacourt.org/law/detail/2014/10/id/147979.shtml (last visited on August 5, 2017)

[31] Based on the rigid selection conditions and procedures, the average age of judges of Beijing IP Court is 40.2 years and 91 percent of them have master degree or above. By average, they have been engaged in hearing cases of IP for 10 years and in the recent five years to each of them have handled 438.5 cases related to IP right. Shanghai IP Court boasts 10 judge of IP averaged 43.6 years of age and 8.4 years’ experience in hearing cases of IP by average. See Jingxia Guo & Yan Zhao, The First IP Court in China is Founded in Beijing (全国首家知识产权法院在京成立), People’s Court Newspaper, Nov. 7, 2014, at 01, available at http://rmfyb.chinacourt.org/paper/html/2014-11/07/content_90126.htm?div=-1 . The Supreme People’s Court, Xielin Wu, the Director of Shanghai IP Court, Revealed the Operation and Condition of IP Court (上海知识产权法院院长吴偕林发布知识产权法院工作运行情况) (Sep.9, 2015), China Court Website, available at http://www.court.gov.cn/zixun-xiangqing-15368.html  (all last visited on August 5, 2017)

[32] Chang Liu, Judge Selection Based on the Principle of Judicial Reform, Directors of  Courts Cannot Be “Judges” (Dec. 26, 2014), The South Weekends Website, available at http://www.infzm.com/content/106579  (last visited on August 5, 2017)

[33] Nianzu Shen, The First IP Court in China is Revealed by the Explorer of China’s Reform of the Judicial System (司改探路者解密全国首家知识产权法院) (Nov. 19, 2014), EEO, available at http://www.eeo.com.cn/2014/1119/268870.shtml  (last visited on August 5, 2017)

[34] Article 1 of the Provisions of Jurisdiction.

[35] Id. art. 2.

[36] The Press Conference regarding China's invention patent authorization and the relevant information (2014年我国发明专利授权及有关情况新闻发布会), SIPO website, available at http://www.sipo.gov.cn/twzb/2014fmzlsqqkfbh  (last visited on August 5, 2017).

[37] Institutional Setup of Beijing IP Court (北京知识产权法院的机构设置), Baidu.com, available at https://zhidao.baidu.com/question/1241809917006141699.html  (last visited on August 5, 2017). Beijing IP Court set up 5 tribunals namely filing chamber, hearing tribunal 1, hearing tribunal 2, hearing tribunal 3 and hearing supervision tribunal.

[38] The operation of Shanghai IP Court represented by the Chief Justice Wu Xielin (上海知识产权法院院长吴偕林发布知识产权法院工作运行情况), The Supreme People’s Court Website, available at http://www.court.gov.cn/zixun-xiangqing-15368.html  (last visited on August 5, 2017). The Shanghai IP Court and the Third Intermediate People’s Court of Shanghai are set up based on the original Shanghai Railway Transport Intermediate People’s Court. Both share the office, but practice under the principle of “judicial independence in the same administrative office.”

[39]Id. Currently, the first and second tribunals are set up for IP cases, and technical investigation division will be established soon. Other issues including filing, implementing and integrated management are borne by the Third Intermediate People’s Court of Shanghai.

[40]Id. “precise organization and flat management” [机构精简、扁平化]

[41] Zhonglin He, Enlightening and Reference of Overseas Court System of Special IP for China (境外知识产权专门法院制度对我国的启示与借鉴), Journal of Law Application, 2010-11, p. 84-88.

[42] Id.

[43]Shoukang Guo and Jian Li, On Specialization of Trial Organization for IP in China: in the Perspective of the German Federal Patent Court (我国知识产权审判组织专门化问题研究——以德国联邦专利法院为视角), Jurist, 2008-3, p. 59-63.

[44] Interim Provisions of Some Issues Regarding the Participation of Technical Investigator in Litigation of the IP Courts (最高人民法院关于知识产权法院技术调查官参与诉讼活动若干问题的暂行规定). Judicial Protection for IP in China Website, available at http://www.chinaiprlaw.cn/index.php?id=504  (last visited on August 5, 2017).

[45] Xiaoming Song, Chuang Wang & Rong Wu, The Comprehension and Applicability   of Interim Provisions of Some Issues Regarding the Participation of Technical Investigator in Litigation of the IP Courts (关于知识产权法院技术调查官参与诉讼活动若干问题的暂行规定的理解与适用),  People’s Judicature, 2015-7, p. 32-34.

[46] Interim Provisions art. 6.

[47] Zhichanbao Judicial Statistic Center, Statistic Report about Judicial Protection in Beijing IP Court (2015) (2015知识产权大数据分析报告), Apr. 16 2016, available at http://www.shuju.net/article/MDAwMDM0O1Dgx.html  (last visited on August 5, 2017).

[48] Judicial Protection of IP in Shanghai IP Court in 2015 (2015年上海知识产权法院知识产权司法保护), Zhichanli Website, available at http://www.zhichanli.com/article/29525  (last visited on August 5, 2017)

[49] Lihua Yang，Research on the History of Patent Law Of the United States of the America (美国专利法历史研究). Beijing: Press of China University of Political Science and Law (2012).

[50]Xuemei Cheng & Peiyu He, Examination and Reference of European Unified Patent Court, and the Path of Building China’s IP Court (欧洲统一专利法院的考查与借鉴——兼论我国知识产权法院构建的路径). IP, 2014-4, p. 89-94.

[51]Id.

[52] Outline of National IP Strategy (国家知识产权战略纲要), SIPO website, available at http://www.sipo.gov.cn/ztzl/ywzt/zlwzn/xgljt/201306/t20130604_801744.html (last visited on August 5, 2017).

[53] Implement of Development Strategy Driven by Innovation (实施创新驱动发展战略), Renmin website, available at http://theory.people.com.cn/n/2012/1213/c352852-19882832.html (last visited on August 5, 2017).

[54]Outline of the National IP Strategy (国家知识产权纲要) (June 10, 2008), available at http://www.gov.cn/zwgk/2008-06/10/content_1012269.htm (last visited on August 5, 2017)

[55] The Supreme People’s Court, Opinions on Comprehensive Deepening of Reform of the People’s Court - the Fourth Five-year Reform Program of the People’s Court (2014-2018) (最高人民法院 关于全面深化人民法院改革的意见——人民法院第四个五年改革纲要（2014--2018）) (Feb. 4, 2015), China Court Website, available at http://www.chinacourt.org/law/detail/2015/02/id/148096.shtml  (last visited on July 20, 2017).

[56] Xiuting Yuan, Vision of IP Court in China and Its Implementation Pat (保证公正司法是设立知识产权法院的根本目标), Science-Technology and Law, 2015-1, p. 22-39.

[57] Id.

[58] Yubing Ding, The Director of Beijing IP Court Chi Su: Fine infringers don’t dare to infringe IP rights again (北京知识产权法院院长宿迟：要让侵权人赔到不敢再权) (Dec. 18, 2014), Renmin Website, available at http://legal.people.com.cn/n/2014/1218/c188502-26234484.html   (last visited on August 5, 2017).

[59] PRC Administrative Litigation Law (2017) arts. 70-71.

[60] Id.

[61]Supra note 49.

[62] Jun Xu, Planning and Design of China’s IP Court (论我国知识产权法院的规划设计), Science-Technology and Law, 2015-1, p.41-60.

[63] The Supreme People’s Court Held the National Symposium on the Performance of IP Courts in China, China Court Website, available at http://www.chinacourt.org/article/detail/2015/04/id/1602417.shtml (last visited on August 5, 2017).

[64] Protection State of IP in China (2012) (2012年中国知识产权保护状况), available at http://www.sipo.gov.cn/gk/zscqbps/201408/t20140812_994380.html ; Protection State of IP in China (2013) (2013年中国知识产权保护状况), available at http://www.sipo.gov.cn/gk/zscqbps/2013zgzscqbhzk.pdf; Protection State of IP in China (2014) (2014年中国知识产权保护状况), available at http://www.sipo.gov.cn/gk/zscqbps/201506/t20150605_1127345.html; Protection State of IP in China (2015) (2015年中国知识产权保护状况), available at http://www.sipo.gov.cn/gk/zscqbps/201605/t20160512_1268876.html (all last visited at August 5, 2017).

[65] Wenming Zhu, 221 Cases Accepted within 1 Month after Beijing IP Court was Founded (北京知识产权法院成立1个月收案221件), China IP News, Oct.12 2014.

[66] Supra note 33. ?[Nianzu Shen, The First IP Court in China is Revealed by the Explorer of China’s Reform of the Judicial System (Nov. 19, 2014), EEO website, available athttp://www.eeo.com.cn/2014/1119/268870.shtml (last visited at July23, 2017)]

[67]Qiang Shen, From Three-hearing-in-one to IP Court: Concurrent Discussion about the Mode of Hearing and System Reform of IP (从“三审合一”到知识产权专门法院——兼论知识产权审判模式和体制的改革[J].电子知识产权), Electronic IP, 2010-8, p.83-87.

[68] Supra note 13?[ The Judicial Protection of Intellectual Property by Courts in China in 2015(Apr. 22, 2015), available at http://www.sipo.gov.cn/ztzl/ndcs/qgzscqxcz/xwfb/201604/t20160422_1264240.html (last visited on August 5, 2017).

[69] Supra note 11.

[70] Supra note 12.

[71] The second instance would be the final instance, which is “两审终审制” in Chinese.

[72] New Property System Should Be Established : From Technology Fight to Copyright Fight (从技术争夺到版权争夺需建立新财产制度), NBD Website, available at http://www.nbd.com.cn/articles/2014-09-18/864125.html  (last visited on August 5, 2017).

[73] Id.

[74] Supra note 28. [Nianzu Shen, The first IP court in China founded, assistant judge is cancelled (Nov. 15, 2014), P5W website, available at http://www.p5w.net/news/gncj/201411/t20141115_837280.htm (last visited at July 23, 2017). 

[75] Supra note 33.

[76]Xiaomao Wei, IP Court: Milestone in Protection of IP in China (知识产权法院：中国知识产权保护里程碑), SIPO Website, available at http://www.sipo.gov.cn/zscqgz/2009/201310/t20131024_846801.html  (last visited on August 5, 2017).