In August 2014 the National People’s Congress (NPC) Standing Committee (全國人民代表大會常務委員會(全國人大常委會) passed legislation establishing specialist courts in Beijing, Shanghai and Guangzhou to hear intellectual property disputes (the Decision of the Standing Committee of the National People’s Congress on Establishing Intellectual Property Courts in Beijing, Shanghai and Guangzhou) (the “2014 IP Courts Law”). The Chinese government has two purposes in establishing these courts now. The first is to create a better forum for the hearing of highly technical disputes. The government’s longer term goal is to test-drive some aspects of the judicial reforms highlighted in the 4th Plenum Decision.
The 2014 IP Courts Law and the Provisions of the Supreme People’s Court on the Jurisdictions over Cases by Intellectual Property Courts in Beijing, Shanghai and Guangzhou (its implementing regulations) contain four important innovations:
- permitting the courts to establish a new framework for appointing judges;
- consolidating the hearing of highly technical cases in the IP courts;
- providing a framework for cross regional jurisdiction; and
- delegating to the Beijing IP court exclusive jurisdiction over the judicial review of:
- objections against central level government agency decisions or acts concerning the granting or affirmation of patents, trademarks and certain intellectual property rights. Foreign companies bring many such cases; and
- objections against central level government agency decisions concerning compulsory licensing on patents and certain intellectual property rights.
Three months in, the implementation of the specialised IP courts is “an encouraging beginning” says Christine Yiu, Partner with Bird & Bird in Shanghai, “but there is still a lot of work to do in building a satisfactory platform to handle complex technology cases.” Tim Smith, Executive at Rouse in Beijing foresees “increasing expertise, efficiency and consistency around the adjudication of IP issues which is clearly a positive for foreign IP rights holders.” As foreign parties feature in a far greater proportion of administrative IP cases compared to civil IP infringement proceedings, the development of the Beijing IP Court will have a disproportionate impact on foreign parties.