Supreme People’s Court: Intellectual Property Protection by Chinese Courts in 2010
In 2010, the people’s courts have, under strong party leadership and effectivesupervision of the people’s congresses, upheld the great cause of socialism withChinese characteristics, observed the tenets of the Deng Xiaoping Theory and the“Three Represents” and adhered to the scientific development approach, and havedischarged their duty of intellectual property adjudication as mandated by theConstitution and the law to achieve the Three Key Tasks of social conflict resolution,development of innovative social administration practices, and fair and honestenforcement of law, so as to serve the greater needs of the country, carry through theNational Intellectual Property Strategy and leverage the justice system as a leadingforce in creating a more effective intellectual property regime, and have, as a result,accomplished their intellectual property adjudication duties and effectively providedjudicial protection for intellectual property to accelerate remodelling of economicdevelopment, reinvent our country and build a moderately prosperous society in anall-round way.In 2010, intellectual property adjudication in China has reached another newground.
I. The courts have executed constitutional and legal duties, and have takenintellectual property adjudication to new heights
In 2010, the people’s courts have conducted intellectual property adjudicationaccording to law, and have placed foremost priority on law enforcement andadjudication, and focused on studying new peculiarities in intellectual property cases.The courts have also concentrated on the key adjudication priorities, employedinnovative adjudication methods; strengthened supervision and guidance; and devotedmore time and effort to adjudication. As a result, adjudication quality has improved,intellectual property cases were adjudicated fairly and efficiently, and the judicialprotection was further established as a leading force in protecting intellectual propertyrights.
During the past year, the people’s courts have handled cases spanning all aspectsof intellectual property law, from civil, to administrative and criminal cases. Overall,there was increase in intellectual property disputes, variety of cases, level of difficulty,seriousness of impact, and the number of foreign-related cases. These have presentedgreater challenge for adjudication, and have elicited greater concern from the societyat large.
Civil litigation continues to be the primary channel of resolution ofintellectual property disputes.
In 2010, the people’s courts have relied on the Tort Liability Law, the revisedPatent Law and its judicial interpretation, the revised Copyright Law andAnti-Monopoly Law to strengthen patent protection for indigenous innovation andimprovement of core competitiveness; strengthen trademark protection for nativebrand building and development of the brand economy; strengthen copyrightprotection for development of new business models and the cultural and creativeindustries; strengthen adjudication of competition cases for better market structureand fairer competition; and strengthen equal protection for a trade- andinvestment-conducive environment. The substantial increase in intellectual propertycaseload shows that the courts have increasingly become the primary channel forresolution of intellectual property disputes.
Total new IP-related first instance civil cases admitted and closed by local courtswere 42,931 and 41,718 cases respectively, and the respective year on year increaseswere 40.18% and 36.74%. Total disputed value for new first-instance cases was7,948,013,300 yuan. Of these cases, 5,785 were patent-related, year-on-year increasewas 30.82%; 8,460 were trademark-related, year-on-year increase was 22.50%;24,719 were copyright-related, year-on-year increase was 61.54%; 670 weretechnology contract-related, year-on-year decrease was 10.31%; 1,131 wascompetition-related (33 were monopoly-related civil disputes), year-on-year decreasewas 11.78%; 1,966 were other IP cases, year-on-year increase was 14.17%. ForIP-related civil cases involving a foreign party, total number of closed cases was1,369 in 2010, 0.59% more than last year; for those involving a Hong Kong, Macao orTaiwan party, the number was 278, 21.25% fewer than last year. Concludedmonopoly-related first instance civil cases totalled 23 cases. Newly admitted andclosed intellectual property cases of second instance for the year were 6,522 and6,481 respectively, and the respective year-on-year increases were 22.13% and18.01%. For closed but reopened (zaishen) cases, 111 were admitted and 109 wereclosed, higher than last year by 11% and 1.87% respectively. At the Supreme People’sCourt (SPC) level, 313 cases were newly admitted and 317 cases concluded, of whichnewly admitted cases of application for zaishen were 198, and 206 (including carriedover cases) were concluded. The SPC have indeed ensured consistency in the judicialprotection of intellectual property.
Adjudication quality and efficiency has continued to improve. Clearance rate ofIP-related civil cases at first instance in all local courts rose from 85.04% in 2009 to86.39% in 2010; appeals rose from 48.82% in 2009 to 49.65% in 2010; zaishen ratefell from 0.33% in 2009 to 0.27% in 2010; cases remanded for retrial (chongshen) andreversal of decisions at appeal also fell from 6% in 2009 to 4.57% in 2010. Clearancerate of IP-related civil cases in trial time limit by the local courts increased from97.38% in 2009 to 97.93% in 2010.
The courts have actively relied on the special function of provisional measures toprotect intellectual property rights.
In 2010, the people’s courts have appropriatelyorderedpre-trial preliminary injunction and pre-trial preservation of evidenceaccording to law. A total of 55 applications for pre-trial preliminary injunction inIP-related cases were admitted by local courts, 89.74% were approved; 294applications for pre-trial preservation of evidence were admitted, 97.46% wereapproved; 126 applications for pre-trial preservation of property were admitted,97.41% were approved. For example, prudence use of pre-trial preliminary injunctionby the Fujian Province Intermediate People’s Court had enabled “soft-landing” ofTaiwan enterprises, such that dispute resolution has little or no negative impact onproduction, or company image, or stability; instead, produced positive social impact.The people’s courts have handled cases that are not only complex in applicationof law, but also involved value judgements and judicial philosophies relating to eacheconomic, social or cultural sector.
These cases reflected the characteristics of intellectual property cases, i.e. largeimpact, difficult to adjudicate, controversial application of law and close publicattention. Typical cases include the invention patent infringement case of Eli Lilly andCompany (U.S.) v. Jiangsu Haosen Pharmaceutical Company, the invention patentdispute in Wang Qun v. French Pavilion for the 2010 Expo, the utility patentinfringement case of Cheng Runcang v. Gong Judong etc., the copyright dispute inChen Jian v. Wanpu (Fushun) Printing Co., Ltd, the copyright infringement case ofMicrosoft v. Dazhong Insurance Company Ltd, the exclusive trademark rightinfringement case of La Chemise Lacoste v. Crocodile International (Singapore) PteLtd, technical trade secret infringement in the case of Tianfu Cola Group Corp. v.Chongqing Pepsi-Tianfu Beverage Co., Ltd, unfair competition dispute in the case ofBeijing Baidu Netcom Science and Technology Co., Ltd. v. Qingdao Branch of ChinaUnited Network Communications etc, dispute on ownership of new plant variety inthe case of Lin Jinshan v. Fruit Tree Research Institute, Fujian ProvincialAgricultural Science Academy, and the case on infringement of exclusive right tolayout-designs of integrated circuits in Huarun Xiwei Science and Technology, Ltd v.Peaktek Technology Limited (Nanjing).
The courts have strengthened support and supervision of governance by lawthrough adjudication of cases involving administrative authorities.
In 2010, the number of IP-related administrative cases concluded at first instanceincreased substantially. Most of such cases were trademark-related. Total IP-relatedfirst instance administrative cases newly admitted at the local courts were 2,590 in2010, 25% more than last year; 2,391 cases were closed, 21.31% more than last year.Of these cases, 551 were newly admitted patent-related cases, where year-on-yeardecrease was 17.51%; 2,026 were trademark-related, year-on-year increase 47.23%;and 2 were copyright-related, year-on-year decrease 50%. At the SPC level, newlyadmitted IP-related administrative cases totalled 60, and concluded cases were 56.The reasons for such increase were more applications for review by the TrademarkReview Board (TRAB), higher litigation rate among the reviewed cases, and highclearance rate of carried over cases by the TRAB. Of the disposed cases, reviewdecisions were upheld in 1,776 or 74.28% of the cases; 330 cases or 13.80% revoked;162 cases or 6.78% withdrawn; the claims of 87 cases or 3.64% were dismissed;judicial review application of 30 cases were dismissed; 4 cases were transferred; and1 case was disposed of through other methods.
There was substantial increase in the number of first instance cases involving aforeign party or a Hong Kong, Macao or Taiwan party. The cases totalled at 1,004,representing 41.99% of first instance IP-related administrative cases concluded; 815of such cases involved foreign parties; 98 Hong Kong parties; 11 Macao parties; and80 Taiwan parties.The number of second instance IP-related administrative cases has also increasedsubstantially. Newly admitted cases in all courts totalled 394; 294 were closed, ofwhich, first instance decisions were upheld in 206 cases, decisions reversed in 20cases, 1 was remanded, 9 were withdrawn, and 4 were dismissed. Cases that producedgreat social impact were Honda Motor Co., Ltd v. Patent Re-examination Board (PRB)of the State Intellectual Property Office (SIPO) & Shijiazhuang ShuanghuanAutomobile Co., Ltd etc’s administrative dispute on industrial design patentinvalidation, Shanxi Xinghuacun Fen Wine Factory Co., Ltd v. Trademark Reviewand Adjudication Board (TRAB) of the State Administration for Industry andCommerce (SAIC) & Anhui Xinghuacun Group Co., Ltd.’s administrative dispute in atrademark opposition and review case concerning “Xing Hua Cun” trademark.
The courts further capitalised on criminal adjudication as punishment anddeterrence of intellectual property criminal offences.
In 2010, IP-related first instance criminal cases experienced a rather significantincrease. Total newly admitted first instance criminal cases was 3,992, 9.58% morethan last year. IP criminal cases accounted for 1,294 (1,153 were cases involvinginfringement of registered trademark such as use of counterfeit marks), 26.99% morethan last year; IP infringement cases involving production and sale of inferior orcounterfeit goods totalled 596, 6.73% lower than last year; IP infringement casesinvolving illegal business operations totalled 2,078, 6.62% more than last year; casesof other nature totalled 24.
Total concluded IP-related first instance criminal cases was 3,942, 7.7% morethan last year. The number of individuals on whom the courts’ decisions becameeffective was 6,001, of which, 6,000 were found guilty.Of the closed cases, 1,254 cases were found related to IP infringement crimes,and the decisions were effective on 1,966 persons, 24.53% and 22.49% higher thanlast year respectively; 609 cases were found related to the production and sellingcounterfeit and inferior goods (involving IP infringement), and the decisions wereeffective on 926 persons; 2,054 cases were found related to illegal business operations(involving IP infringement), and the decisions were effective on 3,068 persons; theremaining 25 were found guilty of other crimes relating to infringement of intellectualproperty, and decisions were effective on 41 persons.
For cases where the court’s decision was IP crime, 585 cases involved theaccused being found guilty of use of counterfeit registered mark, and the decisionswere effective on 1,028 persons; 345 cases involved the accused being found guilty ofsale of products with a counterfeit mark, and the decisions were effective on 459persons; 182 cases involved the accused being found guilty of illegal production andsale of illegally produced registered marks, and the decisions were effective on 253persons; 2 cases involved the accused being found guilty of counterfeiting patent, andthe decisions were effective on 3 persons; 85 cases involved the accused being foundguilty of copyright infringement, and the decisions were effective on 142 persons; 5cases involved the accused being found guilty of sale of IP-infringing reproductions,and the decisions were effective on 10 persons; 50 cases involved the accused beingfound guilty of infringing trade secrets, and the decisions were effective on 71 personsThe most prominent case was the Liu Zhaolong case involving counterfeit registeredtrademarks.
The courts have increased use of mediation and have focused on conflictresolution.
The people’s courts have observed the Several Opinions on Furthering thePrinciple of “Mediation as Priority and Combining Use of Mediation &Adjudication” (“tiaojie youxian, tiaopan jiehe”) issued by the SPC, setting forth thatuse of mediation should be legally based and voluntary; and mediation is priority ifpermissible by law, possible by case merits, and better in outcome. The courts focusedon regulating the mediation process and ensuring appropriate balance of adjudicationand mediation. Where mediation was unsuitable or unsuccessful, a decision wasissued according to law.
The courts continued to put enfforts into exploring greaterpossibilities for mediation, regulating the judicial mediation procedures, andimproving mediation quality and efficiency.
In 2010, court mediation of intellectual property disputes were conducted underbetter institutional framework, more comprehensive rules and regulations, and greaterrationality. Litigation and mediation have attained a new dimension. 66.76% of allIP-related first instance civil cases were successfully mediated and case eventuallywithdrawn, 5.68 percent higher than 2009. The SPC had also successfully mediatedand facilitated withdrawal of 24 difficult intellectual property cases. Examples of suchcases were the trademark infringement cases of France Bayer AG, Bayer CropScience v. Anhui Huaxing Chemical Co., Ltd and Shanghai Johnson & JohnsonPharmaceuticals, Ltd v. Xi’an Qiangsheng Pharmaceutical Co., Ltd, where the partieswere satisfied with the outcome, and response from the general public was positive.As part of a continued effort to improve, the high people’s courts of Shanghai andTianjin have issued guidelines to strengthen mediation of intellectual property-relatedcivil disputes. Also, the prefecture and provincial level high people’s courts ofGuangdong, Hebei, Sichuan, Henan, Guangxi and Guizhou, and the BeijingMunicipality Second Intermediate People’s Court and the Fuzhou IntermediatePeople’s Court of Fujian Province have studied and developed a set of systematicmediation methods.
The courts have espoused openness to ensure fairness, and have deliveredequity to gain credibility.
The people’s courts believe in “sunshine justice”; that is, ensure fairness throughopenness. Openness is assured by specifying the content, procedures and methods foraccepting cases, trial, execution, hearing, documentation, and court administration,and by using various means, such as press conferences, Court Open Day, web livecastetc, to improve transparency in intellectual property adjudication. In doing so, IPcourts have delivered fairness and regulated use of judicial discretion, won publicconfidence and achieved “sunshine justice”. On Public Open Day on 12 April, SPCchose, for the first time, to allow observation of court proceedings of an IP case by thegeneral public. The Hunan provincial courts have also developed a permanent systemfor deputies of people’s congresses to observe court proceedings and for live telecastof court proceedings via the internet, where deputies of people’s congresses areregularly invited to observe IP trials. The Liaoning provincial IP courts are equippedwith information and technology facilities, where livecast of court proceedings are aregular feature. The high people’s courts of Fujian and Yunnan provinces and theintermediate people’s courts of Fuzhou and Kunming have also relied on web livecastto deliver the latest information on intellectual property trials to the masses..
Greater transparency is further exemplified by the introduction of the whitepaper on intellectual property protection to update on the people’s courts’ progress inIP adjudication. In April 2010, the SPC published the bilingual white paper entitledIntellectual Property Protection by Chinese Courts in 2009, providing an overview ofintellectual property adjudication during the thirty years since China’s reform andopening-up and reviewed the achievements of the people’s courts in 2009. The paperdocuments the results and successes of judicial protection of intellectual property inChina, and reflects China’s determination and confidence in intellectual propertyprotection. This was the first time that the SPC had published the work of the people’scourts in respect of IP protection, and an important step taken by the people’s court todeliver the National Intellectual Property Strategy and to strengthen judicialprotection for intellectual property. Similarly, the high people’s courts of Tianjin,Chongqing, Shandong, Guangxi, Sichuan, Gansu and Hebei have also published whitepapers on intellectual property adjudication, and the High People’s Court of JiangsuProvince published a blue paper entitled Judicial Protection of Intellectual Property2009. The white and blue papers provided a complete overview of the intellectualproperty judicial regime at the respective localities, to enable the public to understandIP adjudication and to check and monitor the court’s work; and finally, achieveequality and justice in the IP judicial regime.
Besides maintaining the high quality of the China IPR Judgments & Decisionswebsite, SPC has officially opened a “Judicial Protection of Intellectual Property”sub-website under the SPC’s official website. Both websites will be platforms fromwhich the people’s courts will issue authoritative information on judicial protection ofintellectual property. The public will be promptly informed of the latest developmentsand information of IP protection by the people’s courts. As at end 2010, 41,696judgements were published on the China IPR Judgments & Decisions website. Localcourts have also promptly published information about IP judicial protection on theirown websites IP cases that were adjudicated and decided.
II. The courts have attended to demands for intellectual property-relatedjudicial services in economic and social development, and have achieved newbreakthroughs in implementing the National Intellectual Property Strategy
In 2010, the people’s courts continued to embrace dynamic justice by finding a pointof entry where intellectual property adjudication could support socioeconomicdevelopment, and by focusing on the national strategy of accelerating transformationof development models and maintaining a steady and relatively fast economic growth.The purpose of doing so is to deliver the National Intellectual Property Strategy, andto eventually provide effective judicial protection for intellectual property for fast andhealthy social and economic development.
The courts have adhered to dynamic justice to serve greater internationaland domestic interests.
After the essential undertaking to remodel growth was raised at the 17th NationalCongress of the Communist Party of China, the SPC issued the Several Opinions onthe Provision of Judicial Protection and Service to Support Accelerated Remodellingof Economic Growth in July 2010. The Opinions specified that adjudication of thevarious types of intellectual property cases must be appropriately conducted to ensureand serve indigenous innovation, strengthen judicial protection for intellectualproperty of key sectors, facilitate development of strategic sectors, enabledevelopment of native brands and brand economy, protect the core competitivestrengths of companies, maintain fair competition and market order, encouragecultural innovation, and promote growth of the cultural sector.
In February 2010, in response to the post-financial crisis situations andchallenges in respect of intellectual property adjudication, SPC organised a Seminaron Intellectual Property Protection in a Post-Financial Crisis Era to explore howintellectual property adjudication may be leveraged to reduce or mitigate the adverseeffects on our economy and society in a post-crisis era. In April, to advance the threekey tasks of social conflict resolution, development of innovative socialadministration practices, and fair and honest enforcement of law as proposed by theParty Central Committee and to realise the spirit of the meeting of presidents ofnational high courts, SPC convened a national symposium on intellectual propertyadjudication in Luoyang, Henan Province. At the workshop, participants discussedand planned the direction of IP adjudication under new circumstances, and clearly setforth the related key responsibilities and work measures. After the workshop, the highpeople’s courts swiftly convened meetings to ensure implementation of the spirit ofthe national meeting, based on local circumstances.
To guarantee smooth organisation of major events as the Shanghai World Expoand the Guangzhou Asian Games and Asian Para Games, the people’s courts providedfull support for intellectual property protection and judicial services. SPC formed aspecial investigation team to study World Expo-related IP judicial protection with theShanghai High People’s Court and the Coordination Bureau of Shanghai World Expo,and to instruct the local courts on appropriate adjudication of relevant IP cases. TheShanghai High People’s Court issued special guidelines on application of law whenadjudicating World Expo-related IP cases, defining the standards based on which lawsshould be applied when adjudicating disputes relating to World Expo intellectualproperty issues, and setting forth the World Expo work plan for ensuring availabilityof service for intellectual property protection. The Guangzhou Intermediate People’sCourt and the Guangzhou Asian Games Organizing Committee and its legal advisorheld the Seminar on Strengthening Intellectual Property Protection for the AsianGames for a comprehensive understanding of the judicial needs for intellectualproperty protection at the Asian Games, and have submitted judicialrecommendations on strengthening IP protection at the game.
The people’s courts have responded readily to the State Council’s specialoperation to “Crack Down on Intellectual Property Infringement and Manufacturingand Sale of Counterfeit and Inferior Products”, to further control IP criminalinfringement.
The courts have also cooperated with the procuratorates, and the publicsecurity, industry and commerce, copyright and customs departments to developsynergy, so as to enable fast and healthy development of intellectual property in ChinaMany courts have also provided recommendations for other departments to advancethe National Intellectual Property Strategy. For example, the high people’s courts ofShandong and Hunan provided judicial recommendations on preservation andnotarisation of evidence in the internet environment. When the Guangdong ProvinceHigh People’s Court discovered the use of intellectual property by some foreignenterprises as a commercial means to prevent competition, and to suppress anddisable their Chinese competitors, it provided judicial recommendations to therelevant authorities, suggesting that they should establish a pre-warning mechanismand a mechanism of response to foreign-related parties and aid for overseas IP rightprotection. The Shandong Province High People’s Court proposed specificrecommendations of how IP adjudication could protect and serve the transformationof economic development models, and defined the part which IP judicial protectionplays and the core sectors of protection. The Sichuan Province High People’s Courtissued special opinions to guide IP adjudication to focusing on supporting theremodelling of economic development.
The people’s courts have persisted with judicial reform in the intellectualproperty regime, and have advanced institutional fundamentals for intellectualproperty adjudication and improved work mechanisms.
The people’s courts were increasingly aware of the need for judicial reform, andhave implemented the National Intellectual Property Strategy by driving restructuringand improvement of the IP adjudication and work regime.Part of the judicial reform is a pilot study of “Three-in-One” adjudication, i.e.intellectual property divisions of the people’s courts will administer all IP-related civil,administrative and criminal cases. In July 2010, the SPC convened the “Symposiumon Pilot Study of Centralising Adjudication of Intellectual Property Civil,Administrative and Criminal Cases by Intellectual Property Divisions” in Kunshan,Jiangsu Province. Participants included representatives from the relevant centralauthorities and courts involved in the “Three-in-One” pilot project. New pilot entitieslater approved by the SPC included the Fuzhou Intermediate People’s Court, XiamenIntermediate People’s Court, the basic and intermediate people’s courts of Shenzhen,Foshan and Zhongshan municipalities, and the basic courts of Gulou District ofFuzhou municipality and Siming District of Xiamen municipality. As at endDecember 2010, total pilot entities included 5 high courts, 49 intermediate courts and42 basic courts.
2010 saw continued efforts to realign jurisdiction for intellectual propertydisputes and improve further judicial resources. In January 2010, SPC issued theNotice on Adjustment of Jurisdiction Criteria of the Various Levels of People’sCourts for First Instance Intellectual Property Civil Cases and the Notice on Printingand Distribution of Jurisdiction Criteria of the Various Levels of People’s Courts forFirst Instance Intellectual Property Civil Cases to revise and clarify jurisdiction fordifferent classes of IP civil cases by the various levels of courts. Although jurisdictionfor cases relating to technology and well-known marks are strictly restricted, morebasic courts are allowed to hear general IP cases, as appropriate. Intermediate andbasic courts are encouraged to form jurisdiction blocks crossing jurisdictionboundaries, and to explore the possibility of assigning jurisdiction of certain patentcases to certain basic courts. In its reply (pifu) to the Kunshan People’s Court ofJiangsu Province, SPC agreed to the court’s request to commence a pilot programmeon adjudicating patent disputes relating to utility models and designs. As of today,two basic courts have joined the pilot study. As at end December 2010, the number ofintermediate people’s courts having jurisdiction for patent disputes stood at 76, 44 fornew plant variety, 46 for layout-designs of integrated circuits and 41 fordetermination of well-known marks; 101 basic courts have jurisdiction for generalintellectual property disputes.
In keeping with the spirit of judicial reform, the relevant local courts have alsodeveloped detailed programmes based on local circumstances, to ensure success of the“Three-in-One” pilot project and unobstructed delivery of justice. In Zhejiang andInner Mongolia, for example, the high people’s courts have stepped up cooperationand coordination with local procuratorates and police to develop guidelines onjudicial protection for criminal cases pursuant to the pilot.The courts have strengthened innovation in the adjudication regime forintellectual property cases to improve the quality of IP-related judicial services.As intellectual property cases require technical expertise, SPC continued toestablish and improve judicial systems in respect of forensic evaluation, expertwitness and technical investigation etc. At the same time, it also encouraged andguided the appropriate courts in exploring effective approaches and specific methodsfor conducting technical investigation.
In April 2010, SPC signed a memorandum of cooperation in judicial protectionof intellectual property with the China Association for Science & Technology tostrengthen cooperation between the parties, based on which, SPC has established ascience & technology special advisory expert body comprising eleven academicfellows of the Chinese Academy of Science and Chinese Academy of Engineering,including Yuan Longping and Zhong Nanshan, all of whom will serve as expertadvisors in science & technology for SPC. SPC hopes to leverage their expertise toadvise on macro policy issues relating to IP judicial protection, answer technicalquestions relating to the cases in question, and assist in resolving IP disputes. Thiswas an important step toward judicial reform of the IP regime. The high people’scourts in Shanghai, Jiangsu, Qinghai, Hebei, Zhejiang, Guangxi and Shanxi were alsoexploring the establishment of a technical investigation system for fact-finding in IPcases, and have created technical experts advisory bodies and piloted the expert jurysystems and expert witness systems. These systems and mechanisms are important forresolving difficulties involving technical expertise, and have helped improve thequality of adjudication of IP cases. The Xiamen Intermediate People’s Court has alsoattempted establish a protective order system with respect to IP adjudication toprevent risking loss of confidentiality through disclosure of trade secret by the partiesasserting their rights.
The courts have increased publicity on judicial protection of intellectualproperty by organising Intellectual Property Publicity Week based on the April26 World Intellectual Property Day.
To maximise the impact of the World Intellectual Property Day on 26 April, thepeople’s courts have organised the “World Intellectual Property Publicity Week”,during which a series of varied and multidimensional activities were put together toshowcase our achievements in IP judicial protection and our IP judges, and create apositive image for judicial protection of intellectual property in China. During theweek, SPC organised a press conference and released important judicial documents,such as the bilingual white paper entitled Intellectual Property Protection by ChineseCourts in 2009, the Ten Major Cases in Judicial Protection of Intellectual Property inChina in 2009 and Fifty Classical Cases, the Supreme People’s Court Annual Reportof Intellectual Property Cases (2009) and the Supreme People’s Court’s Opinions onSeveral Issues Regarding the Adjudication of Administrative Cases Relating toGranting or Validation of Trademarks and the memorandum of cooperation injudicial protection of intellectual property signed with the China Association forScience & Technology. The local people’s courts have also complied with SPC’srequirements for more intensive and extensive publicity, giving special attention tothe content and form of publicity. The publicity vehicles used include traditional andcontemporary media at the local and central levels; even foreign media. Newspapers,television, radio, broadcast stations, internet, magazines and posters & banners werefully utilised. Judges were organized to taking part in promoting the importance ofjudicial protection for intellectual properties and in presenting the courts’ latestachievement justice and policies. The above activities had played a positive role inelevating the general IP awareness among the public.
Activities at the local level are manifold. The courts in Jiangsu Province havesuccessfully organised the 15th Year Commemorative Seminar of ProfessionalIntellectual Property Adjudication in Jiangsu Province cum Seminar on IntellectualProperty Protection and Balance of Interests, and published the Innovation andDevelopment—A Compendium of Fifteen Years of Intellectual Property Adjudicationby Jiangsu Courts and the Commemorative Catalogue of Glories Journeys and aBrighter Tomorrow. The Zhejiang High People’s Court organised an intellectualproperty press conference and answered questions of journalists from more than 40local and foreign media. The Hubei High People’s Court collab0rated with theScience Technology and Law magazine to start a special column that promotesawareness of IP judicial protection. During the activity period, the Production &Construction Corps Branch of the Higher People’s Court of Xinjiang UigurAutonomous Region issued 6,000 questionnaires on intellectual property knowledgeand put up more than 60 display boards. Courts in Hainan and Tibet also relied ondifferent ways to promote the achievements of the courts in IP protection.
The courts have intensified international exchanges and cooperation toenhance China’s international influence on judicial protection of intellectualproperty.
In 2010, with increasing integration of the global economy and speedinginternationalization of intellectual property systems, the people’s courts havestrengthened international exchanges and collaboration, improved on the quality of IPadjudication, and focused on establishing positive international profile on IP judicialprotection. Diplomatic activities were good platforms on which the courts couldrespond to issues of concern to the foreign parties, clarify misunderstandings,publicise our achievements in IP protection, and defend our international image. SPChas sent representatives to participate in the Sino-Europe Intellectual PropertyWorkgroup Conference, the Sino-American Joint Commission on Commerce andTrade (JCCT) IPR Working Group Conference, and the meeting of the Chinese-SwissWorking Group on Intellectual Property. Our courts have actively participated in theEU-China IPR2 Project activities, and have communicated our position anddetermination to protect intellectual property. The people’s courts continued tointensify intellectual property exchanges and cooperation relating to the economy andtrade through dialogues with the US, Europe, Switzerland, Russia, Japan and Brazil,and through special intellectual property working groups, including visits by Japaneseintellectual property officials. SPC has received delegations of nearly one hundredsenior officials from Japan, US and other countries, and has based on internal needs,arranged outstanding judges to visit countries as the US, Japan and Europe fortraining and exchanges. The Zhejiang High People’s Court has also received adelegation from the American Intellectual Property Law Association and judges fromthe U.S. Court of Appeals for the Federal Circuit, and judges had in-depth discussionswith the visitors on IP topics of interest.
III. The courts have established rules for application of intellectual propertylaws to ensure consistency, and have improved judicial supervision and guidance
Consistency in application of law is embodied in the tenet of all being equalbefore the law. It is a manifestation of fairness and authority of the justice system, andthe fundamental features of a country with rule of law. In 2010, consistent applicationof intellectual property laws continued to be the people’s courts’ priority. To ensurefairness and consistency in the intellectual property judicial system, the courts haveidentified problems that affected fairness of decisions and consistency in applicationof law, persisted at developing innovative methods and strengthening adjudicationmanagement to improve institutions and mechanisms for supervision and guidance.
The Courts have intensified implementation of judicial policies to regulateuse of discretion during adjudication of intellectual property cases.
Based on the characteristics and needs of different intellectual property cases,SPC has developed a judicial policy that allows differentiated treatment andappropriate protection of intellectual property based on their category. SPC has alsorelied on various means to ensure observance of IP-related judicial policies, and haseffectively leveraged judicial policies as macro regulatory measures for consistency inadjudication.
In April 2010, SPC issued the Opinions on Several Issues Regarding theAdjudication of Administrative Cases Relating to Granting or Validation ofTrademarks. This was the first time that SPC issued guidelines on judicial reviewstandards for the granting and validation of trademarks in the form of normativedocuments. The Opinions define the boundaries of the relevant laws and setuniform judicial standards, and is of significant importance for ensuring properdelivery of judicial reviews and consistency in trademark determination andvalidation. In November, SPC issued the Notice on Adjudication of CopyrightDisputes Relating to Internet Cafés. By identifying the key issues in internetcafé-related copyright disputes and promptly clarifying the adjudication principlesand specific standards for similar cases, the Notice has ensured protection of theparties according to law and effectively prevented infringement of copyrights. Ithas also enabled dissemination of information and regulated such dissemination,and has facilitated healthy development of the cultural industry on internet.
The courts have explored the case guidance system for the intellectualproperty legal regime, and have promptly published typical intellectual propertycases for reference purposes.
The people’s courts place great importance in the demonstrative value of typicalcases in intellectual property adjudication. One of the key tasks of the courts is toselect and publish typical cases so that the case referencing could be developed into astandardised and permanent system. In April 2010, SPC released the SupremePeople’s Court Annual Report of Intellectual Property Cases (2009). The AnnualReport is a compendium of 37 typical intellectual property cases closed and on whichfinal conclusive opinions have been given. Based on the written judgements anddecisions of these 37 cases, 44 typical problems on application of law are identifiedand are publicised in the form of an annual report. The annual report, whichcondenses the SPC’s experience in adjudicating typical cases, is an attempt at a moreinnovative method of adjudication guidance, and an importance step towardtransparency and acceptance of public supervision. The Ten Major Cases in JudicialProtection of Intellectual Property in China in 2009 and Fifty Classical Cases is agood example of leveraging the demonstrative effect of cases, as it encompassesIP-related civil, administrative and criminal cases, and nearly all IP-related categoriesas patent, new plant variety, copyright, trademark and unfair competition. These cases,which are vivid examples of how the people’s courts have stepped up protection ofintellectual property and the legal rights of IP holders, and how the courts exercisetheir powers to determine the boundaries of rights, help instil an intellectual propertyrule of law awareness and create an honest and lawful competition culture. Localcourts have also selected and published typical and outstanding cases; the highpeople’s courts of Tianjin, Chongqing, Shandong, Anhui, Fujian, Hunan, Sichuan andHeilongjiang have also released the ten typical local cases. The High People’s Courtof Guangxi Zhuang Autonomous Region has established a case reference systembased on typical cases, and the Intermediate People’s Court of Shaanxi Province hasalso published classic cases on judicial protection of intellectual property.The courts have strengthened study of IP-related topics to improve thequality of IP-related judicial interpretations and interpretive documents.The people’s courts firmly believe in “research-based adjudication” andregards research as integral to adjudication of intellectual property cases, andinstrumental to producing high quality judicial interpretations and interpretivedocuments.
To this end, the courts have organised seminars, invited experts tospeak, held judges’ forum, conducted field studies, written survey reports andpublished books.
In 2010, SPC convened topic-specific seminars for the relevantcourts across the country. The seminars provide a platform for prompt resolutionof key issues in judicial practice and for strengthening research and study in theapplication of law for new genres of cases. The courts have also embarked on aseries of researches and studies, including judicial protection of copyright in theinternet environment; adjudication standards for granting and validation of patents;research and study of granting and validation of trademarks; copyright protectionfor foreign works without an administrative licence; copyright infringement ofinternet cafés; judicial protection of trade secrets; study of the judicial protectionsystem for intellectual property during the Twelfth Five-Year Plan period;application of law during adjudication of civil disputes involving monopoly;application of law during adjudication of IP-related administrative cases; and studyof the relevant issues relating to the establishment of an intellectual propertyappeals court, etc. Researches and studies provided the courts insights on thesituations and dynamics of the current intellectual property judicial system andfruitful research outcomes. Judicial interpretation and interpretive documents willbe issued based on full and thorough researches and studies. After much researchand study, special adjudication guidelines were issued to address issues incopyright protection for foreign works without an administrative licence, copyrightinfringement of internet cafés, adjudication standards for granting and validationof trademarks. The local courts have also amassed research outcomes valuable forguiding adjudication. Over the years, intellectual property judges have developed aprofessional attitude towards research and learning. The Specialised Committee onIntellectual Property Adjudication Theory have co-organised with otherdepartments the “Seminar on the Commemoration of the 20th Anniversary of theCopyright Law and Fundamental Theory on Copyright Protection”, and publishedthe Study of China Intellectual Property Adjudication Theory (Volume 2). TheBeijing High People’s Court also published the Classic Intellectual PropertyCases (Volume 5 & 6) and the Classic Cases on Internet Copyright.
The courts have diversified the channels of guidance for intellectualproperty adjudication to fully discharge their duty of guidance
In 2010, the superior courts have continued to diversify their tools ofguidance, which include judicial interpretation, judicial papers, guidelines,topic-specific research studies, professional meetings, training on special topics,magazines for internal circulation, guiding cases, etc. In doing so, they haveundertaken the duties of guidance for intellectual property adjudication,standardised adjudication criteria for intellectual property cases, regulated theexercise of discretion for intellectual property cases, and ensured justice in theintellectual property cases. Additionally, SPC has summarised its experience inadjudicating cases involving application for zaishen and collated the problemsencountered by the courts during adjudication, and based on which, increased itsguidance for key issues. Similar cases are studied, so as to guide the relevantcourts in correct application of law; standard criteria are established for judicialdetermination of well-known marks and in-depth evaluation of cases involvingwell-known marks is conducted, to increasingly regulate judicial protection ofwell-known marks.
Also, the Shanghai Municipality High People’s Court hasdeveloped a judicial guidance paper on methods to determine the amount ofstatutory indemnification for disputes involving intellectual property infringement,clarifying methods of application of statutory indemnification under several basicprinciples; the High People’s Court of Jilin Province has put together a team ofhigh-performing IP judges to lecture at the intermediate people’s courts within theprovince; the high people’s courts of Hunan and Ningxia provinces haveestablished coordinate mechanisms for kindred cases; the High People’s Court ofShanxi Province has established and improved on the contact-reporting system(lianxi baogao zhidu) between the superior and inferior courts; the Tianjin HighPeople’s Court has authored and published the 2005—2009 Major Events inTianjin Intellectual Property Adjudication and the Intellectual PropertyAdjudication by Tianjin Courts; the high people’s courts of Heilongjiang, Shanxiand Gansu have also authored publications on intellectual property adjudicationguidance.
IV.The courts have strengthened capacity building for intellectual propertyjudges, and have enhanced judicial competence and quality
Capacity building is fundamental to the people’s courts. In 2010, the people’scourts have, based on practical needs, strengthened adjudication management andintroduced innovative methods, strengthened capacity-building among intellectualproperty judges, intensified activities based on the theme of “People’s Judges for thePeople” (“Renmin Faguan Wei Renmin”), and nurtured the core judicial values of “ToJustice, In Honesty, For the People”, so as to build a team of intellectual propertyjudges who are firm in political beliefs, professionally sound, people-oriented, andwho are fair, honest and superior.
The people’s courts have worked hard at improving the professional skillsof judges.
Judges’ skills must be upgraded consistently to guarantee delivery of socialjustice and quality. In 2010, the people’s courts have continued to focus on theimportant tasks of professional skills improvement and training of intellectualproperty judges, including professional knowledge and adjudication skills. The courtshave also developed learning-based court sessions, strengthened adjudicationmanagement and improve on the learning and training regime, so as to groom a teamof professional adjudication experts in our judges. Getting the essential aspects at thebasic level, especially establishing IP adjudication infrastructure at the basic courts,was a pressing task. Professional training includes seminars and trainings organisedby SPC, as well as trainings conducted by the high people’s courts and theintermediate people’s courts. Strengthening of adjudication guidance includes trainingthat employs innovative methods, that are problem-based and results-driven, that arecentralised, that encourage vertical communication between specialised divisions, thatinclude observation of court sessions, and that involves case evaluation and review.Intellectual property judges are active self-learners who are not only constantlyacquiring new knowledge in intellectual property law, from judicial papers issued bysuperior courts and from typical cases and decisions, but also basic knowledge inscience and technology. Many courts, especially those with heavy caseloads, are keento recruiting persons with science and technical expertise into their team of judges.Recently, SPC has organised two training sessions on intellectual propertyadjudication for all courts at the National Judges’ College. Nearly 200 judges attendedthe training sessions. Many courts have also organised activities of various forms tonominate star performers and adjudication experts. The courts in the central andwestern regions, such as those from Jiangxi and Qinghai, have organised study toursfor judges to visit the eastern developed regions for observation and mentor-learning.The high people’s courts of Shanghai, Hunan and Guangdong have collaborated withPRB of SIPO and other intellectual property authorities to establish long-termexchange mechanisms. The provincial high people’s courts of Chongqing, Shandong,Guangdong, Hebei, Xinjiang, Inner Mongolia, Guangxi and Liaoning have increasedtraining for judges through various methods.
The courts have worked hard at improving the working style of theintellectual property judges.
Style is image, and style is credibility. In 2010, the people’s courts continued toimprove their styles by organising public perspectives education, establishing “justicefor the people” as a purpose, cultivating the sense and awareness for the public amongintellectual property judges, and by maintaining a positive culture. They have alsoorganised activities for judges to meet the community, enterprises, schools and publicgroups to hear from the academic community, emerging industries, the corporateworld, social groups and the masses opinions and recommendations on judicialprotection of intellectual property, and to establish close ties with the general public.The high people’s courts of Shandong, Jiangsu, Liaoning, Sichuan, Inner Mongolia,Guizhou and Heilongjiang have forged closer ties with companies to betterunderstand the development of the various sectors and to increase the awarenessamong companies to protect their intellectual property rights. In Jiangxi Province, thePingxiang Municipality Intermediate People’s Court has established an intellectualproperty legal aid centre that provides free advice and recommendations to companies,public service entities and individuals. The Heping District People’s Court in Tianjinhas established a circuit court in the Culture and Creative Industrial Park in Park No.6 of Heping District. The large pool of intellectual property judges are working hardto cultivate the core values of justice, honesty and service for the people, to improvetheir professional ethics, and to live the tenets as set forth under the BasicProfessional Ethics for Judges, Judges’ Code of Conduct, and Basic Rules on theCivilised Use of Language by the People’s Court. The courts also encourageemulation of Model of Progressiveness (“Xianjin Dianxing”) by learning from JudgeChen Yanping, known for being a “good judge who has won confidence and trustfrom the people”, and from Judge Long Jinpin, a national outstanding judge who wasvoted “Pioneer of the Era” (“Shidai Xianfeng”). The Intellectual Property Division ofthe Beijing Municipality High People’s Court was awarded the “WIPO CopyrightGold Award” by the World Intellectual Property Organisation; and the IntellectualProperty Division of the Shanghai Municipality High People’s Court was conferredthe title of “Progressive Group by the Special Task on Protection of IntellectualProperty at the World Expo”.
The people’s courts have persisted at building a clean and honest team of IPjudges.
An honest judicial team ensures observation of professional ethics, whichguarantees judicial justice. In 2010, the people’s courts have continued to build anhonest team of judges by imposing institutional monitoring and ethical restraints.They have intensified education on judicial honesty, and have relied on more effectivemethods, avoiding mechanical indoctrination, organised pre-warning education(“Jingshi Jiaoyu”), and enhanced awareness on preventing corruption and degradation.The courts have complied strictly with the “Five Strictly Prohibited Behaviours” andthe various anti-corruption regimes. SPC has also instructed people’s courts of variouslevels to accept supervision, to strengthen supervision mechanisms, and to imposerestraints for the building of a fair and honest justice system for improving thecredibility of the judicial system.
Conclusion
2011 is the first year of implementation of the Twelfth Five-Year Plan period.The people’s court will confront the challenges and seize strategic opportunities forstrengthening judicial protection of IP. They will adhere to the Deng Xiaoping Theory,the “Three Represents”, and the “scientific development approach” to help remodeleconomic growth. The people’s courts will work to accomplish their core tasks ofenforcement of law and disposition of cases, and will strengthen capacity-building,and continue to deliver the Three Key Tasks. They will exercise their powers ofintellectual property adjudication independently and fairly, and intensify practicalthematic activities based on the tenets of “uphold our tradition, adhere to beliefs, andenforce law for the people”. The people’s courts will bring intellectual adjudication tonew heights, and will provide judicial guarantee to support indigenous innovation andthe country’s core competitiveness.