Beijing IP Court receives top marks in first year

By Wang Yadong and Han Yufeng, Run Ming Law Office
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With the adoption of the decision by the Standing Committee of the 12th National People’s Congress to establish intellectual property courts, the Beijing Intellectual Property Court was established in November 2014 and has now been operating for a little over a year. During this period, the court has put forth a number of measures in the intellectual property (IP) trial field addressing issues such as administrative interference in judicial procedures and “varying judgments in similar cases”.

Han Yufeng Intellectual Property Counsel Run Ming Law Office
Han Yufeng
Intellectual Property Counsel
Run Ming Law Office

It has made solid contributions to the professionalization of adjudication and judicial transparency. Being the region with the greatest number of IP cases in the country, it goes without saying that the various exploratory efforts of Beijing’s IP court have an impact on, and set an example for, IP adjudication nationwide as well as reform of the entire adjudication system.

Professional talent ensures professionalized adjudication. In ordinary courts, judges will often move between divisions due to promotions or court management needs, giving them little incentive to intensively study specialized IP knowledge. In contrast, the cases of IP courts relate only to IP such that recruitments are all conditioned on satisfying the actual requirements of IP adjudication.

Wang Yadong Executive Partner Run Ming Law Office
Wang Yadong
Executive Partner
Run Ming Law Office

Pursuant to the Guiding Opinions of the Supreme People’s Court on the Selection and Appointment of Intellectual Property Court Judges (for Trial Implementation), the court has implemented a “judge personnel system” on a trial basis, with all appointed judges openly selected from the judge personnel list determined by the central public sector reform authority. They cannot directly transfer to the court. The scope of such open selection includes both outstanding judicial personnel who have engaged in IP and related adjudication work and professionals with equivalent credentials and conditions who have engaged in IP law practice, legal research and teaching.

This selection method is a marked difference between IP courts and other courts at present. Speaking from immediate personal experience as lawyers, the court genuinely has assembled a coterie of professional judges with a solid theoretical foundation and extensive practice experience who can ensure professionalism in the handling of cases.

Specialized consulting systems provide professional opinions for the handling of cases. The court has established four research committees responsible for copyright, trademark right, patent right, and other types of litigation-related legal issues, respectively. There is also a corresponding judge specialty meeting system that serves as an internal consulting organ. When a collegiate bench is unable to arrive at a consensus on a certain issue, it may refer the same to a research committee or a judge specialty meeting for discussion, thus securing specialized support while maintaining judicial independence.

Technical investigation officers provide powerful support in technology related cases. The ascertainment of the facts is the precondition to the application of the law, and in cases involving technology, the ascertainment of facts is more complex than for ordinary cases. Accordingly, understanding of the technology is particularly important. However, under the past IP court framework, regardless of whether a judge had a technical background or not, he or she was required to render a judgment on factual issues of a technical nature, likely affecting the professionalism of the trial of the case.

In this regard, the court has established a technical investigation office, engaged technical investigation officers, part-time technical investigation officers and technical experts in various technical fields, and formulated the Working Rules for the Technical Investigation Officers of the Beijing Intellectual Property Court. These measures are conducive to enhancing the objectivity, professionalism and neutrality of the ascertainment of technical facts and ensuring the impartiality and efficiency of the trial of technical cases.

Standardization and transparency of the case opening procedure make the opening of cases more regulated. The court has published the Guidelines of the Beijing Intellectual Property Court for the Handling of the Pre-Registration of the Institution of Administrative Cases (for Trial Implementation), which clarify the materials and other requirements for various types of cases. They also make the online opening of cases possible. Based on the authors’ experience, this case opening procedure is clear, with its random number assignment system preventing human interference, and in cases where everything is in order, it is possible that the case opening notice will be received on the same day.

Judge responsibility system targeted at resolving the issue of administrative interference in adjudication. The court has comprehensively implemented a judge responsibility system where divisions no longer have deputy division heads or independently have presiding judge positions. Rather, the judge handling a case serves as the presiding judge on the collegiate bench.

In the past, in difficult or complex cases or those with a material impact, reporting to the division head or to an even higher level was often required, leaving an opening for improper administrative interference in the handling of the case. The court has abolished the reporting system, and the president and division heads, in principle, no longer listen to reports, instead appearing as consulting experts. The judicial results are determined by the majority opinion of the collegiate bench, thereby avoiding, to the extent possible, administrative interference in judicial procedures.

Establishment of case guidance system resolves the issue of inconsistent judicial standards. The court has established the Supreme People’s Court IP precedent research base in Beijing to explore an IP precedent guidance system appropriate for China. The authors participated as assessors in the first batch of guiding precedents, where it could be clearly seen that the judges put in a great deal of effort in drafting the judgments that they sent for consideration, exhibiting their superb judicial skills.

Additionally, the de facto binding nature of the guiding precedents effectively restrains the discretion of judges. There is hope that, with this, there will be a substantial decrease in the incidence of similar cases producing varying judgments. From here on in, the tracking and understanding of laws and guiding precedents will play an important role in protecting the rights and interests of parties and will, naturally, place more stringent requirements in respect of the level and professional qualities of lawyers.

In the short space of one year, the changes that the foregoing measures of the court have brought to the IP sector are obvious to all. The authors are confident that the court will continue to issue various reform measures into the future.





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