Traditionally civil, administrative and criminal IPR cases have been heard by the Intellectual Property, Administrative and Criminal Divisions of the courts, respectively. For instance, both the IPR Tribunals and the Administrative Tribunals of the Beijing No. 1 Intermediate People’s courts were entitled to exercise jurisdiction over IPR administrative cases involving patent and trademark rights grants and determinations. The issue is that different divisions may apply different criteria to the same case.
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.