Judicial Protection of IPR in China

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With more than 20 years’ durable efforts, a relatively completed IPR judicial protection system has been established in China. The power of IPR judicial protection has been increasingly intensified, and the level of protection has been enhanced constantly. IPR judicial protection in China is composed of three main components including civil, administrative and criminal judicial protection, in which the civil judicial protection constitutes the basis of the entire system. To protect relevant right owners’ legitimate interests and maintain the order of the socialism market economy, people’s courts at each level around China try IPR disputes and severely punish IPR crimes in accordance with law.

The mechanism of juridical organs handling IPR related cases is relatively completed in China. By the end of 2004, divisions specialized in the trial of IPR cases had been established respectively in all Higher People’s Courts at provincial level, Intermediate People’s Courts in all provincial capital cities and some other big cities and even in certain Primary People’s Courts. The IPR trial division in the Supreme People’s Court was set up in October 1996, and was renamed as the Third Civil Division in 2000.

The system of IPR litigation has been improved constantly, and a fairly comprehensive IPR judicial interpretation system has been formed. In December 2004, the “Interpretations on Several Issues on Application of Law for Trial of IPR Criminal Cases by the Supreme People’s Court and the Supreme People’s Procuratorate” and “Interpretations on Several Issues on Application of Law for Trial of Technology Contract Cases by the Supreme People’s Court” were formally issued and put into effect. The criteria for prosecuting and sentencing IPR crimes have been further clarified and properly lowered. The rules for applying technology contract laws have been unified.

In order to ensure the quality of trails, the jurisdiction over IPR cases in China is relatively centralized. In respect of cases involving patent, varieties of new plant and layout designs of integrated circuits, designated jurisdiction has been adopted. The Supreme People’s Courts has respectively appointed 49, 34 and 43 Intermediate People’s Courts to try the abovementioned kinds of case in first instance。The arrangement of the jurisdictions is basically reasonable. Civil cases involving other kinds of IPR should in general be handled by intermediate or above people’s courts. In 2004, 90.76 percent of IPR cases were tried by intermediate or above people’s courts in China。

People’s court across the country offer judicial relief to parties concerned, and have accepted and concluded a great deal of IPR disputes. From 1985 to 2004, local people’s courts have accepted a total of 69,636 IPR civil cases in first instance, and concluded 66,385. Of all the accepted cases, 18,654 were patent involved, 14,708 were copyright disputes, 6,629 were trademark cases, and 8,368 were other kinds of IPR cases.

IP civil cases that people’s courts accepted were continuously and rapidly increased in recent years. In 2004, people’s courts across the country accepted 12,205 IPR civil cases covering first instance, second instance and re-trial proceedings, with an increase of 31.65 percent over that of the previous year.  About 11,113 cases have been concluded, 23.78 percent higher than in 2003. Of all the docketed cases, 9,329 were first instance cases with an increase of 33.51 percent, and 8,332 were concluded with an increase of 21.46 percent compared with the year of 2003. By the conclusion of these cases, around 2,980 million RMB disputed value has been settled. In the same year, the number of civil cases involving copyright, patents and trademarks increased evidently, about 4,264 copyright cases, 2,549 patent cases and 1,325 trademark cases were accepted, with respective increases of 71.16, 20.81 and 43.09 percent compared with that of 2003, among which, copyright cases reached the most increase. The proportion of cases involving ownership and infringement of IPR was relatively higher, amounting to 86.86 percent of all accepted IPR civil cases in 2004. Among the concluded cases in first instance in 2004, 365 cases involved factors of foreign countries, Hong Kong, Macau and Taiwan, with an increase of 88.14 percent over that of 2003, and accounted for 4.38 percent of the total concluded cases. Of all the overseas related cases, 151 cases were involving foreign enterprises, organizations and individuals, 111 cases were Hong Kong and Macau related, and 58 cases were Taiwan involved, with respective increases of 60.64, 91.83 and 38.1 percent compared with that of 2003. In 2004, the Supreme People’s Court concluded 78 IPR cases, 16.4 percent more than in 2003.

People’s courts across the country highly regarded and actively but cautiously applied various provisional measures including preliminary injunction, pre-trial preservation of property and evidence and measures in the course of proceedings, such as preservation of property and enforcement in advance, to instantaneously deter infringements and effectively prevent the further loss of right holders. According to uncompleted statistics from Beijing, Shanghai, Guangdong, Jiangsu, Shandong, Zhejiang, people’s courts in above mentioned areas have accepted 257 applications for preliminary injunction and pre-trial evidence preservation since the revisions of the Patent Law, the Trademark Law and the Copyright Law, among which, 183 applications were granted in accordance with laws. The proportion of approval amounted to 71.21 percent.

The administrative judicial protection for IPR by people’s court is mainly to fulfill the function of judicial review over the administrative enforcement of IPR, i.e., to uphold proper administrative enforcement actions and to rectify those administrative actions incompliance with laws. Since 1987, people’s courts have accepted a total of 1,703 IPR administrative cases in first instance, and concluded 1,654, mostly involving patent re-examination and invalidation disputes, trademark review and cancellation disputes. In 2004, people’s courts across the country accepted 526 IPR administrative cases, 35.21 percent increase over in 2003; around 549 cases have been concluded, 40.05 percent higher than the previous year.  Among the accepted cases, there were 377 patent related cases, 141 trademark related cases, with increases of 26.51 and 98.59 percent respectively, but only 8 cases were copyright related, 60 percent decreased comparing with in 2003.

As for the IPR criminal judicial protection, a total of 387 IPR criminal cases were accepted by people’s courts across the country in 2004, 385 were concluded, and 528 accused were sentenced to be guilty. Trademark crimes were the most of IPR criminal cases, amounting to 82.94 percent of total cases in 2004. Crimes involving trade secretes infringement took the second position which accounted for 13.4 percent of total criminal cases in 2004. The main features of IPR criminal cases include (a) that complicities and corporate crimes were significantly involved, (b) that measures adopted by criminals were complicated and most are intelligent crimes, (c) that crimes were often carried out consecutively and cross multiple regions, and (d) as to the penalty, terms of imprisonment usually were relatively shorter, most less than 5 years, but criminal fines were usually imposed simultaneously. In addition to the IPR crimes, 932 and 1,434 cases respectively related to crime of manufacturing or selling false and inferior commodity and crime of illegal business were concluded by people’s courts across the country in 2004, and 1,961 and 2,526 accused were sentenced to be guilty, among these criminals, many of them were IPR infringers. 

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