On February 27 2018, the top policy-making bodies in China
(the General Office of the Party and the General Office of the
Council) published an unprecedented policy roadmap for
reforming the IP adjudication system (opinions). The opinions
reveal much clearer thinking and critical measures for reforms
and innovation in the IP adjudication system.
The opinions again emphasise the important role of judicial
protection of IP. It will be interesting to see if these
opinions have a direct impact on patent administrative
enforcement. In the recent draft amendment to Patent Law,
several provisions proposed granting administrative authority
more power in patent enforcement matters, which caused
considerable controversy. In light of the opinions, such
provisions in the draft amendment to Patent Law might be
modified significantly before being passed by Congress.
The opinions propose establishing a national IP appellate
hearing mechanism in order to solve the potential issue of
inconsistency among different IP courts across the country.
From the wording, it is hard to ascertain the nature of the
appellate mechanism. One possibility is having one appellate
court review all decisions from all first instance IP courts.
Another possibility is having one appellate court with several
divisions review the decisions from their respective first
As of today, there are three IP courts in Beijing, Shanghai
and Guangzhou, as well as specialised IP tribunals in some
major cities. Following on from Shenzhen and Xi'an, cities such
as Tianjin, Zhengzhou and Changsha are reportedly to acquire IP
tribunals soon. It is predicted that the provinces with strong
economies will have one or two IP tribunals in order to achieve
cross-region jurisdiction. Beijing IP Court will soon have
jurisdiction over some IP cases in the neighbouring provinces.
Such centralised jurisdiction is the trend, especially for
The opinions propose picking IP judges from legislative
staff, lawyers and legal scholars and at the same time
seconding judges to government roles in different cities for
more experience. Unlike the US, China does not have a tradition
of selecting judges from lawyers. In the past five years, some
limited experiments were done. With the release of the
opinions, we might see more lawyers in private practice
The opinions propose several measures to reduce the burden
of proof carried by IP owners and also propose determining
damages. In addition, the IP case guidance system will be
improved, and an expeditious procedure will be introduced for
IP cases to reduce caseloads. All these measures, if adopted,
will continue to change the landscape of IP litigation in
Notably, the opinions call for strengthening the capacity
building of technology investigation officers and creating
rules for the admission of technology investigation comments.
This issue has increasingly been a concern for litigants
wanting fairness in the procedures.
In China, technology investigation officers help judges with
technical fact finding, a practice which is believed to come
from Japan. A technology investigation officer serves as an
assistant to the panel and may attend the litigation
proceedings, including hearing the oral debates and sitting in
the panel deliberation. Most of these technology investigators
are chosen from patent offices.
Relevant laws are to be amended to accommodate the reform
proposals and measures mentioned above. Therefore, it is
expected that the National People's Congress will speed up the
review of the amendments to Patent Law and Copyright Law, as
well as the relevant laws on the court organisation
In conjunction with the proposed merge of the China Patent
Office and Trademark Office, the upcoming changes in IP trials
inspire hope of some real improvements.
AnJie Law Firm
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