Introduction
New categories of proceedings
Key changes


Introduction

Until recently, the jurisdiction over first-instance IP cases has been rather complicated in China. There are:

  • four specialised IP courts (in Beijing, Shanghai, Guangzhou and Hainan);
  • 27 IP tribunals;
  • numerous competent intermediate courts;(1) and
  • an array of basic level courts designated by the Supreme People's Court (SPC).

These exercise jurisdiction over different categories of first-instance IP proceedings. However, the jurisdictional rules expounding the geographical range covered by these courts or tribunals and the jurisdiction thresholds over objects of action (in terms of civil proceedings) have been scattered and are often not easily accessible to practitioners. The occasional inconsistency and ambiguity of the existing rules – in particular, those concerning the basic level courts – has further complicated China's IP jurisdiction landscape.

On 20 April 2022, to streamline the jurisdiction rules, the SPC promulgated:

  • Several Provisions on the Jurisdiction over First-instance Civil and Administrative IP Cases (the new judicial interpretation); and
  • the Jurisdiction Thresholds of Basic Level People's Court over First-instance Civil and Administrative IP Cases.

The new judicial interpretation came into force on 1 May 2022.

New categories of proceedings

In principle, the new judicial interpretation breaks down all IP proceedings into three categories:

  • highly technical proceedings (No. 1 and No. 2 in the table below);
  • less technical proceedings (No. 3 in the table below) and those pertinent to certain administrative authorities (No. 4 in the table below); and
  • proceedings of a general nature (No. 5 in the table below).

The rationale behind this is that the first two categories of cases are to be adjudicated by the more experienced judges in the specialised IP courts and competent intermediate courts, while the cases of a general nature may be delegated to and decided by basic level courts sanctioned by the SPC.

The following table illustrates the new jurisdiction rules as set out in articles 1, 2 and 3 of the new judicial interpretation.

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Key changes

Through the new judicial interpretation, the SPC is delegating jurisdictional power over first-instance civil and administrative IP cases to a much bigger pool of courts. A few changes merit attention.

First, contractual disputes concerning the following do not count as highly technical cases under the new judicial interpretation:

  • invention patents;
  • utility model patents;
  • new varieties of plants;
  • layout design of integrated circuits;
  • technical secrets; and
  • computer software.

These contractual disputes will fall within the remit of the basic level courts or, in rare cases, the higher-level courts if the value of the case exceeds certain thresholds.

The SPC also enables intermediate courts and some eligible basic level courts to adjudicate civil and administrative disputes over the ownership or infringement of design patents and the recognition of well-known trademarks.

It is very welcome that the SPC has released the Jurisdiction Thresholds of Basic-level People's Court over First-instance Civil and Administrative IP Cases, which explicitly enumerates the geographical range and corresponding threshold of jurisdiction of 556 basic level courts, some of which (eg, the six basic level courts in Beijing) are given more leeway in docketing cases.

The new judicial interpretation leaves the jurisdiction of the IP courts unchanged. Moreover, the general jurisdictional rules governing civil or administrative litigations that have been in place remain effective. This means that if an IP matter is of nationwide or provincial impact, the SPC and the high courts may take the case in the first-instance proceeding.

However, there are also exceptions to the jurisdiction rules. A court at a higher level may opt to grant the request of a lower court – or decide of its own accord – to move a case that was originally governed by the lower court up to its jurisdiction, where a civil or administrative IP case is:

  • of a new type;
  • intricate or complex; or
  • of guiding significance in terms of the application of law.

For further information on this topic please contact Huimin Qin or Nan Jiang at Wanhuida Intellectual Property by telephone (+86 10 6892 1000) or email ([email protected] or [email protected]). The Wanhuida Intellectual Property website can be accessed at www.wanhuida.com.

An earlier version of this article was first published by IAM.

Endnotes

(1) In this article, "competent intermediate courts" refers to the intermediate courts of the cities in which the governments of provinces, autonomous regions and municipalities directly under the central government are located and the intermediate courts designated by the Supreme People's Court.