Several Provisions of the Supreme People's Court on the Participation of Technical Investigation Officers in Litigation Activities in Intellectual Property Cases
(Adopted at the 1760th meeting of the Judicial Committee of the Supreme People's Court on January 28, 2019, and coming into force on May 01, 2019)
Judicial Interpretation [2019] No. 2
For the purposes of regulating the participation of technical investigation officers in litigation activities in intellectual property cases, these provisions are formulated in accordance with the Law on the Organization of People's Courts of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and the Administrative Procedure Law of the People's Republic of China, and in light of the judicial practice.
Rule 1 When trying intellectual property cases requiring strong technical expertise, such as those on patents, new plant varieties, integrated circuit layout designs, technical secrets, computer software, and monopoly, the people's court may designate technical investigation officers to participate in litigation activities.
Rule 2 Technical investigation officers are judicial assistants.
The people's court may set up a technical investigation office to be responsible for the daily management of technical investigation officers, designate technical investigation officers to participate in litigation activities in intellectual property cases, and provide technical advice.
Rule 3 After the technical investigation officer participating in litigation activities in an intellectual property case is appointed or changed, the court shall inform the parties of such appointment or change within three days and notify in accordance with the law the parties that they have the right to apply for the recusal of the technical investigation officer.
Rule 4 The recusal of technical investigation officers may refer to the provisions of the Criminal Procedure Law, Civil Procedure Law, Administrative Procedure Law and other laws applicable to the recusal of other personnel.
Rule 5 A technical investigation officer who has participated in litigation activities in one trial proceeding of a case shall not participate in the litigation activities in other proceedings of that case.
However, for a case remanded for a new trial, where the case enters again a second-instance procedure after the court of first instance makes a ruling, the technical investigation officer who has participated in the litigation in the original second-instance procedure shall not be subject to the restriction mentioned in the preceding paragraph.
Rule 6 Technical investigation officers involved in litigation activities in intellectual property cases shall perform the following duties with respect to the technical issues involved in the cases:
(1) proposing suggestions on the key issues of disputes on technical facts and the scope, sequence, and methods of investigation;
(2) participating in investigation, evidence collection, inspection, and preservation;
(3) participating in inquiries, hearings, pretrial conferences, and court trials;
(4) putting forward technical investigation opinions;
(5) assisting judges in organizing appraisers and professionals in relevant technical fields to present their views;
(6) attending collegial panel deliberations and other relevant meetings; and
(7) completing other related work.
Rule 7 Technical investigation officers who participate in investigation, evidence collection, inspection, and preservation shall consult relevant technical materials in advance, and make suggestions on methods, steps, and precautions for investigation, evidence collection, inspection, and preservation, etc.
Rule 8 When technical investigation officers participate in inquiries, hearings, pretrial conferences and court trial activities, with the judge's consent, they may ask the parties and other litigation participants about the technical issues involved in the case.
The seat of a technical investigation officer in the courtroom is set to the left of the judge's assistant, and the seat of a clerk is set to the right of the judge's assistant.
Rule 9 A technical investigation officer shall provide technical investigation opinions on the technical issues involved in a case before the case is deliberated.
The technical investigation opinions are independently issued and signed by the technical investigation officer, and will not be disclosed to the public.
Rule 10 When a technical investigation officer attends the case deliberation, his/her opinions shall be recorded in the deliberation transcript and signed by him/her.
Technical investigation officers do not have the right to vote on the adjudication of a case.
Rule 11 The technical investigation opinion put forward by a technical investigation officer can be used as a reference for the collegial panel in determining technical facts.
The collegial panel shall be responsible for the determination of technical facts according to law.
Rule 12 Where a technical investigation officer participates in litigation activities in an intellectual property case, he/she shall sign the judgment document. The signature of the technical investigation officer is placed under that of a judge's assistant and above that of a clerk.
Rule 13 Technical investigation officers who violate the laws and relevant provisions related to trial work, or who commits an act of corruption, accepts bribes, practices favoritism for personal gains, or intentionally issues false, misleading or significantly omissive and inaccurate technical investigation opinions, shall be subject to legal liability; where a crime is constituted, the criminal liability shall be pursued according to law.
Rule 14 According to the needs of case trials, the people's court at a higher level may dispatch the technical investigation officers of the people's courts at all levels within its jurisdiction.
When the people's court tries the cases referred to in Rule 1 of these provisions, it may request the people's court at a higher level to dispatch technical investigation officers to participate in litigation activities.
Rule 15 These Provisions shall come into force on May 01, 2019. If the relevant provisions previously issued by this Court are inconsistent with these Provisions, these Provisions shall prevail.
