What does a Chinese IP lawyer do

The IP Tribunal at the Supreme People's Court is responsible, among other things, for appeals against:

  • first instance civil court decisions by high people's courts, specialized IP courts and middle people's courts in relation to patents, utility models, new plant varieties, topographies of integrated circuits, technical trade secrets, computer software and antitrust cases;
  • first instance administrative decisions of the specialized IP court of Beijing regarding grant or nullity proceedings in relation to patents, utility models, designs, plant varieties and topographies of integrated circuits; and
  • First instance administrative decisions by high people's courts, specialized IP courts and middle people's courts in relation to patents, utility models, designs, plant varieties, topographies of integrated circuits, technical trade secrets, computer software and administrative penalties for monopolies.

The IP Tribunal currently relies on 27 judges. If necessary, the number of judges can grow to 50-60 in the medium term. The IP Tribunal is currently divided into six disputes chambers, a technical support department, a logistic support service center and a general support department.

The establishment of the IP tribunal fits into the overall framework of the establishment of a specialized IP court in China, which began with the opening of the specialized IP court in Beijing on November 6, 2014. This was followed not only by the opening of specialized IP courts in Shanghai and Guangzhou at short intervals, but also by the establishment of IP chambers in 18 middle people's courts with first instance jurisdiction for IP disputes.

In this development, the opening of the IP court of appeal marks a special turning point, which is associated with serious changes in the IP court structure in China. The jurisdiction for appeals in civil IP proceedings used to lie with the high people's courts at the provincial level, i. H. in 32 high people's courts (one each for the 23 provinces, 4 independent cities and 5 autonomous regions). Experience shows that courts in different cities and provinces use different standards when hearing the cases. As a result, one and the same case can be decided completely differently in Beijing than in Guangzhou. Now the appeal jurisdiction for technical IP will be concentrated in a single national court. This is not only a significant streamlining, but will also lead to a standardization of jurisdiction and quality standards, similar to the US.

Usually only two instances are provided for civil disputes in China. This posed the risk of local protectionism when first instance judgments were reviewed by the high people's court in the same province, city or region. The concentration of the appeal in Beijing will now curb the space for local protectionism, because for the majority of cases the second instance is no longer dealt with locally.

As in Germany, the principle of separation between infringement and nullity proceedings was also practiced in China. However, this has largely been repealed by the competences of the new IP court of appeal. Except for the non-technical property rights (design and trademark), the last instance for infringement and nullity proceedings has now been brought together at the IP tribunal of the Supreme People's Court. This not only puts a stop to inconsistent interpretations in the infringement and nullity proceedings, but also avoids procedural delays due to parallel proceedings, which are often seen in practice.

Overall, the development is good news for property rights holders who are interested in enforcing their property rights in China. This is expected to make IP disputes more predictable, faster, and more professional.