On 26 October 2018 the 13th National People's Congress Standing Committee (NPCSC) concluded its sixth session and adopted the Decision on Several Issues Concerning the Litigation Procedures of Patent and Other IP Cases, in order to "unify the standard for adjudicating intellectual property cases".
The decision sets out the following stipulations which will apply for three years:
- First-instance judgments in highly technical civil IP cases – including those involving invention patents, utility models, new plant varieties, integrated circuit layout designs, technical know-how, computer software and monopolies – will be directly appealable to the Supreme People's Court.
- First-instance judgments in highly technical administrative IP cases – including those involving patents, new plant varieties, integrated circuit layout designs, technical know-how, computer software and monopolies – will be directly appealable to the Supreme People's Court.
- Where a retrial request or prosecutorial protest is filed against a first-instance judgment or mediation decision that has come into effect, the Supreme People's Court will hear the case, provided that the procedure for judicial supervision applies. The Supreme People's Court may also designate a lower people's court as the retrial court for such a case.
In a later press conference, the Supreme People's Court affirmed that an IP tribunal will hear appeals and retrials in highly technical cases. The current IP Division of the Supreme People's Court will continue to hear other IP cases.
Notably, the decision leaves out design patent cases in civil cases but does not exclude design patents in administrative cases.
The jurisdiction of IP criminal cases remains unchanged. Civil and administrative cases involving trademark, copyright and unfair competition which are not regarded as highly technical IP cases will still follow their previous route of appeal and retrial to the higher courts. Further, although not mentioned in the decision, if the trial court is a high court (provincial level) or the Supreme People's Court itself, the Supreme People's Court will remain the appeal court or the retrial court. There is speculation that the Supreme People's Court's IP tribunal and its existing IP Division may serve as the retrial court for each other's cases.
The Supreme People's Court is scheduled to report to the NPCSC three years following the decision's implementation, which took place on 1 January 2019.
For further information on this topic please contact Nan Jiang or Huimin Qin at Wanhuida Peksung by telephone (+86 10 6892 1000) or email (firstname.lastname@example.org or email@example.com). The Wanhuida Peksung website can be accessed at www.wanhuida.com and www.peksung.com.
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