FICPI, The International Federation of Intellectual Property Attorneys

Supreme People’s Court of China Will Take Over Second Instance of all Highly-Technology-Related IPR

21st January, 2019

From 1 January 2019, new rules of jurisdiction of technology-related intellectual property rights (“IPR”) litigation cases will be applied according to the Decision of the Standing Committee of the National People’s Congress of China's on Several Issues Concerning Litigation Procedures of Patent and Other Intellectual Property Cases (hereinafter referred to as “the Decision”) enacted on 26 October 2018. The Decision aims to unify the standards for adjudicating IPR cases, further strengthen judicial protection of IPRs, optimise the legal environment for scientific and technological innovation, and accelerate the implementation of the innovation-driven development strategy. The main change brought by the Decision to the litigation procedure is that the jurisdiction of intellectual property civil and administrative second-instance cases involving technical issues will be changed from provincial high courts to the Supreme People’s Court (SPC).

According to the Decision, there are two types of the IPR litigation cases, which will be appealable to the SPC no matter which court tries first instance.

1. highly-technology-related civil litigation cases

The first instance of an IPR civil case that requires more technological expertise, i.e., those relating to invention patents, utility model patents, new varieties of plants, layout designs of integrated circuits, technical secrets, computer software, monopoly and so on, should be appealed to the SPC. Before the Decision, normally a provincial high court was the second instance court. Herein design patent cases are not included. 

2. highly-technology-related administrative litigation cases

The first instance of an IPR administrative case that requires more technological expertise, i.e., those relating to patents (including invention patent, utility model patent and design patent), new varieties of plants, layout designs of integrated circuits, technology secrets, computer software, monopoly and so on should be appealed to the SPC. Herein all the three types of patents are included. Before the Decision, Beijing High Court is the only court for the second instance cases for all patent re-examination and invalidation administrative litigation as Beijing IP Court is the only competent first instance court for such cases.

Meanwhile, the Decision also stipulates that for the judgment, adjudication, or mediation decision of the first instance of the above-identified cases, which has already come into effect, the retrial shall be heard by the SPC. The SPC may also designate a lower court to conduct a retrial according to the law.

It will be the IP Tribunal under the SPC to take charge of such cases.

This Decision will undoubtedly be conducive to realising the harmonisation of the civil and administrative procedures and judgment standards of IPR-related cases. It will also be conducive to solving the problem of the inconsistency of the judgment standards of local courts. Meanwhile, it is said that to a certain extent, it will be conducive to eliminate the interference of possible local protectionism in patent litigation procedures.

Author: Lena Shen

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