On August 31, 2014, the Standing Committee of the People's Congress decided the establishment of three Intellectual Property Courts in three cities: Beijing, Shanghai and Guangzhou.

The initial project was to create a unique Court of Appeal, to be situated in Beijing, specialised on patent related cases coming from all Intermediate Courts in China, with a view to harmonizing the jurisprudence over such technical matters.

As the project went up the levels of decision making, its nature changed and lead to the creation of three "IP Courts", in the three major cities of China.

Details about the exact scope of jurisdiction of these new IP Courts needed to be clarified.

The Supreme People's Court has recently done so by adopting, during the 1628th meeting of Judicial Committee, the "Provisions on the Jurisdiction of the Intellectual    Property    Courts    of    Beijing Municipality, Shanghai Municipality and Guangzhou City over Cases", (FaShi [2014] No.12), which are implemented as of November 3, 2014.

Article 1 of the Opinions defines three areas of first instance jurisdiction for the IP Courts (in their respective geographical areas):

  1. Civil and administrative cases concerning patents1
  2. Administrative cases concerning copyrights, trademarks and unfair competition 2
  3. Cases involving the identification of well-known trademarks.

Apart from the mention of software, protected by copyright; and well-known trademarks, this article says nothing about the jurisdiction over civil cases concerning trademarks, copyright, unfair competition etc.

Article 3 stipulates that:

  1. Intermediate courts in Beijing, Shanghai and Guangzhou city shall not accept civil and administrative cases about intellectual property rights. This means that Intermediate courts in these cities have no jurisdiction about these matters;
  2. Other Intermediate Courts in Guangdong province, and Basic people's courts in Beijing, Shanghai and Guangzhou city shall not accept cases mentioned under points 1 and 3 of article 1 (patent related civil and administrative cases and well-known trademark cases). This means indirectly that other Intermediate courts in Guangdong may still accept those cases mentioned under point 2 of article 1 (i.e., administrative cases concerning copyright, trademarks and unfair competition).

Article 5 defines the first instance competence of the Beijing IP Court.

(1)Objection against a ruling made  by one of the administrative authorities under the State Council concerning the authorization and affirmation of IP rights (patents, trademarks, new varieties of plants, layout design  of integrated circuits etc.);

(2)Objection against a decision concerning compulsory licences, royalties and remuneration, in relation to patents, new varieties of plants etc.;

(3)Objection against any other administrative decision involving the authorisation and affirmation of IP right.

In other words, the Beijing IP Court has jurisdiction over all appeals filed against decisions of the PRB and TRAB, and also decisions made by SIPO or the CTMO (such as refusal to accept and examine an application).

Article 6 stipulates that the IP Courts in Beijing, Shanghai and Guangzhou shall hear appeals lodged against first instance judgments made by a Basic people's court located in such cities, in matters concerning copyright, trademarks, technology contracts, unfair competition and other intellectual property rights.

Therefore, it is indirectly clarified that IP Court are situated at the "Intermediate" level of the courts judicial organisation.

Article 7 stipulates that when an appeal against a first instance judgment made by an IP Court, or a request for reconsideration "by the courts at the next higher level", is filed, the case shall be heard by the intellectual property judicial tribunal of the Higher people's court of the place where the IP Court is located.

It must be noted, however, that such first instance  judgments  made  by  IP  Courts  are only those mentioned in Article 1 hereof, which leaves open the issue of civil cases concerning copyright, trademark, unfair competition etc. not addressed in Article 1.

According to judicial practice, these cases, depending on their importance, are filed directly before the Basic people's court (under 5 million Rmb in Beijing),  the Intermediate people's court (between 5 and 10 million Rmb in Beijing) or even before the Higher people's court (above 10 million Rmb).

The main question is, therefore, whether it will be possible to file important civil infringement cases at the Intermediate level in the three cities (before the IP Courts - or even at the higher level for extremely big cases), or whether it will be necessary to start all the cases, regardless of their size, at the basic level. Such a situation would be rather strange since it would only concern the three cities, and not all the other cities where the current jurisdiction rules remain unchanged.

Further clarification of the Provisions might be necessary.