China Law Insight : China Law Insight: China Commercial and Intellectual Property Lawyers and Attorneys, Full Service Law Firm: King & Wood

• On 8 January 2010, the Heyuan Government held a government affairs meeting on the promotion of GPS vehicle data loggers for purposes of reinforcing the administration of public transportation safety.  Decisions made at the meeting were issued in the form of the Municipal Government Affairs Meeting Minutes 2010, Issue 6 ("Meeting Minutes").  According to the Meeting Minutes, the GPS tracking and monitoring platform established by New Space-Time Navigation Technology Co., Ltd ("NST") was appointed as the only municipal tracking and monitoring platform.  All the other GPS operators must upload their monitoring data onto NST's platform.  NST was entitled to charge the other GPS operators a data upload service fee at no more than RMB 30 per months per vehicle. 

• On 12 May 2010, the Heyuan Government issued the Working Plans for Promoting GPS Vehicle Data Recorder ("Working Plans").  The Working Plans expressly set out the requirement that real time monitoring data of specified types of automobiles in Heyuan must be uploaded to the monitoring platform appointed by the Heyuan Government.

• On 11 November 2010, the Heyuan Government held another government affairs meeting, requesting the traffic management bureau not to clear the annual review of any automobile whose monitoring data was not uploaded to NST's monitoring platform.

• Until the end of 2010, there were 11 GPS operators in Heyuan, among which NST, Weiba, Yiliu and some others have established their own monitoring platform.  Before NST was appointed as the only operator of the municipal monitoring platform, the monitoring data collected by the other GPS operators were directly uploaded onto the provincial monitoring center of Guangdong. 

Based on the above facts, Guangdong AIC is of the opinions that:

Firstly, NST is a GPS operator and does not have administrative powers.  Appointing its platform as the mandatory municipal platform in effect forces the other GPS operators to accept NST's data services;

Secondly, NST charged other GPS operators a pre-paid data upload service fee.  Otherwise, NST would refuse the other GPS operators to upload their data onto its monitoring platform.  This effectively forced the other GPS operators to accept NST's paid services;

Thirdly, the Heyuan Government requested the traffic management bureau not to clear the annual review of any automobile whose monitoring data is not uploaded to NST's monitor platform.  Such a compulsory measure compelled the other GPS operators to rely on NST's services, and damaged the competition in the industry.

Under the guidance of the State Administration for Industry and Commerce ("SAIC"), Guangdong AIC officially proposed to Guangdong Government for "rectifying in accordance with law Heyuan Government's conduct that has abused its administrative powers to eliminate and restrict competition". 

In response to Guangdong AIC's suggestion, on June 12, 2011, Guangdong Government issued an administrative review decision finding that Heyuan Government violated the Anti-Monopoly Law and that its abusive conducts be revoked.

Comments:

One of the unique features of the AML is that it also regulates administrative monopoly, which refers to monopoly created by administrative agencies or organizations entrusted with public administration functions by laws or regulations.

The authority to investigate administrative monopoly is divided between the SAIC and the National Development and Reform Commission ("NDRC") in the same way as the agencies share their AML enforcement authorities in the areas of monopoly agreements and abuse of market dominance.  In other words, SAIC (together with provincial AICs) is responsible for non-price related administrative monopoly whereas NDRC (together with provincial price administration authorities authorized by NDRC) is responsible for price related administrative monopoly. 

Noticeably, pursuant to Article 51 of the AML, SAIC and NDRC cannot directly impose sanctions against administrative authorities for abuse of administrative powers.  They can only propose to the relevant superior authority on how to appropriately deal with the monopoly conducts. Article 6 of the Rules on Prohibiting Abuse of Administrative Powers to Eliminate or Restrict Competition issued by the SAIC on 31 December 2010 (see our article entitled "3 rules which shed light on non-price violations of the Anti-Monopoly Law - effective 1 February 2011") also stipulates that SAIC and provincial AICs may provide corrective suggestions to the relevant superior authority. Therefore, conducts that are abusive of administrative powers to eliminate or restrict competition could only be revoked through the administrative review proceeding.

On a separate note, this is yet another example of AML enforcement actions made by provincial AICs under the guidance of SAIC.  Earlier this year, the provincial AIC of Jiangsu issued sanctions against a local industry association of concrete manufacturers and 16 concrete manufacturers for entering into a monopoly agreement (see our article entitled "First Public Enforcement Decision by SAIC against Concrete Manufacturers").  As the Chinese anti-monopoly enforcement agencies become increasingly experienced, we expect to see more enforcement actions coming up in the future.
 

As such, several guidelines have been issued to explore the possibility of establishing specialized IPR Tribunals which would hear all types of IPR-related cases. In this regard, on June 5, 2008, the “Outline of the Nation's Intellectual Property Rights Strategy” promulgated by the National Council requested that courts “look into the establishment of specialized IPR tribunals and IPR appellate courts which have jurisdiction over all IPR civil, administrative and criminal cases.” Furthermore, on March 23, 2009, the Supreme People;s Court promulgated the ”Opinions of the Supreme People;s Court on Several Issues Regarding the Implementation of the National Intellectual Property Strategy” (hereinafter, the “Opinions”) which provided that “research shall be carried out regarding the appropriate adjudication model for IPR-related cases; research on the establishment of specialized IPR tribunals to hear IPR civil, administrative and criminal cases”.
 

In line with the Opinions noted above, at the “China High-Level Forum on IPR Protection” held on April 24, 2009, the Chief Justice of the IPR Tribunal of the Supreme People’s Court announced a list of test courts for the establishment of specialized IPR Tribunals to hear IPR civil, administrative and criminal cases. This list includes three (3) High People’s Courts (in Chongqing, Jiang and Fujian), twelve (12) Intermediate People’s Courts and fifteen (15) District Courts.
 

On July 1, 2009, the Supreme People's Court (“SPC”) released a Circular providing guidelines for courts exercising jurisdiction over cases involving patent and trademark rights grants and rights determinations (hereinafter known as the “Circular”). From July 1, 2009, IP Tribunals of intermediate courts in Beijing and the Beijing High People’s Court will have exclusive jurisdiction over IPR administrative cases of the First and Second Instance for rights grants and rights determinations for patent, trademark, layout design of integrated circuit and new varieties of plants cases. If parties are dissatisfied with the rulings after they have been rendered, parties may file a re-trial application to the court of the next higher level. The re-tried case shall be examined and heard by the IPR Tribunals of the court of the next higher level.
 

The “Circular” is a first step in legislation to establish specialized IPR Tribunals to hear IPR civil and administrative cases, while the “test courts”, as designated by the IPR Tribunal of the Supreme People’s Court, will address, concurrently, civil, administrative and criminal claims. Based upon the success of the adjudications in the “test courts”, IPR criminal cases will be exclusively adjudicated by IPR Tribunals throughout China. With the guidelines set forth in the Circular, as well as the establishment of the “test courts”, the judiciary in China is taking steps towards improving the efficiency of adjudication in IPR cases and unifying the judicial practices.
 

知识产权民事、行政、刑事案件“三审合一”审判模式
徐静 张海若
在中国，传统上知识产权民事、行政、刑事案件分别由知识产权庭、行政庭以及刑事审判庭审理，其中，针对专利、商标授权确权类知识产权行政案件，北京市第一中级人民法院行政庭及知识产权庭均有权受理。上述知识产权案件的审理模式容易出现裁判标准不一的问题。
为解决上述问题，国务院以及最高院先后出台文件，要求探索设立知识产权三审合一的法庭。2008年6月5日，国务院出台《国家知识产权战略纲要》，要求法院“研究设置统一受理知识产权民事、行政和刑事案件的专门知识产权法庭。探索建立知识产权上诉法院”。2009年3月23日，最高院出台《最高人民法院关于贯彻实施国家知识产权战略若干问题的意见》（“意见”），提出要“积极探索符合知识产权特点的审判组织模式，研究设置统一受理知识产权民事、行政和刑事案件的专门知识产权审判庭”。
为贯彻上述“意见”，2009年4月24日举行的中国知识产权高层论坛上，最高院知识产权庭审判长颔中林公布了三审合一试点法院的名单，进行“三审合一”试点的高院有3个：重庆市高级法院、江苏省高级法院、福建省高级法院。中院“三审合一”的有12个，基层法院进行“三审合一”的有15个。
2009年7月1日，最高院出台《关于专利、商标等授权确权类知识产权行政案件审理分工的规定》（“规定”），明确规定“专利、商标、集成电路布图设计和植物新品种案件4种授权确权类知识产权行政案件，自7月1日起将统一 由知识产权审判庭审理。”根据该规定，北京市有关中级人民法院知识产权审判庭将作为专利、商标等授权确权类知识产权行政案件的一审法院，北京市高级人民法院知识产权审判庭作为此类案件的二审法院。同时，该规定还明确了专利、商标等授权确权类知识产权行政案件再审分工，即当事人对于人民法院就此类案件所作出的生效判决或者裁定不服，向上级人民法院申请再审的案件，由上级人民法院知识产权审判庭负责再审审查和审理。据悉，对于7月1日之前已经受理的案件，原由行政审判庭审理的，将继续由行政审判庭审理完结，如上诉，也仍然由上级人民法院的行政审判庭审理。
此次最高院正式发文，确定知识产权行政案件和民事案件统一由知识产权审判庭审理，已经迈出了三审合一的第一步。同时，最高院指定的试点法院也已开展了三审合一的审判试点工作。基于试点结果，最高法将考虑是否将刑事案件统一归属知识产权庭审理。上述规定的出台以及试点法院的建立，有助于法院逐步提高知识产权案件审判效率、实现知识产权审判标准的统一。