On 4 January 2019, the National People’s Congress published a draft amendment to the Patent Law (the “Amendment”). See the Chinese version here. The Amendment is open for public comments through February 3, 2019 via the NPC website.
China Law & Practice (ALM) published my article analyzing the provisions of the Amendment here. Unfortunately, it is behind a paywall. However, here is a redline of the changes in English.
Email me if you have any questions or if I or my firm, Dunlap, Bennett & Ludwig can assist you regarding Chinese IP!
I wanted to expand here on the article I recently published at CGTN. In that article, I pointed out that as of January 1, 2019, the Supreme People’s Court (“SPC”) enacted a national appellate court for civil and administrative IP cases. However, it is important to note that the new Intellectual Property Rights Court for Appeals (“IPRCA”) is not just an appellate court, as it can also serve as a trial court.
In addition to hearing appeals in cases concerning invention patents, utility model patents, design patents, new plant varieties, layout design of integrated circuits, know-how, computer programs, and antitrust, the new IPRCA can also hear “major” and “complicated” first instance civil and administrative cases, as well as other cases that the SPC considers should be tried before the IPRCA. Exactly what the SPC considers “major” and “complicated” is not clear. Further, there is a catch-all category including “[o]ther cases that the SPC considers should be tried before the IP Court.”
Until the new court has some cases under its belt and/or the SPC provides additional interpretations, on Dec. 28, 2018, the SPC issued the Provisions on Issues Concerning IP Tribunal (the “Provisions”) providing details regarding the IPRCA. See here for the Chinese version of the Provisions or here for a (quite imperfect) Google-translated English version. UPDATE: here is bilingual version.
Article 2 of the Provisions states that the IPRCA shall have jurisdiction over the following:
Other than jurisdictional issues, the Provisions also provide some additional details. For example, Article 4 provides for electronic service and disclosure (hallelujah!). Article 5 allows for electronic and online evidence exchanges, pre-trial meetings, and other court functions to maximize efficiency (again, wonderful!). Article 6 states that the IP Court may, if needed, travel to the location of the original trial or case. Article 8 states that case filing information may be inquired through the electronic litigation platform and the China Trial Process Information Open Network. Although this seems to anticipate a structure not in existence yet, it is certainly cause for excitement because one of the most limiting features of Chinese litigation is the lack of a full electronic case management system.
I will continue to provide updates as we learn more about the new IP Court. For now, I am a huge fan and see this as a real game-changer. I look forward to finding out for what cases the new court will act as a trial court, and what resources will be available to ensure that the new organizational structure does not create a paralyzing bottleneck in an already-overloaded system.
See my latest article on China’s new IP Appellate Court published by the China Global Television Network, the English-language news channel of the State-owned China Global Television Network group:
Welcome to the China Patent Blog by Erick Robinson. Erick Robinson's China Patent Blog discusses China's patent system and China's surprisingly effective procedures for enforcing patents. China is leading the world in growth in many areas. Patents are among them. So come along with Erick Robinson while he provides a map to the complicated and mysterious world of patents and patent litigation in China.
Erick Robinson is an experienced American trial lawyer and U.S. patent attorney based in Beijing. He is a Partner at Porter Hedges LLP, where he manages patent litigation, licensing, and prosecution in China and the US.
The ideas and opinions at ChinaPatentBlog.com are my own as of the time of posting, have not been vetted with my firm or its clients, and do not necessarily represent the positions of the firm, its lawyers, or any of its clients. None of these posts is intended as legal advice and if you need a lawyer, you should hire one. Nothing in this blog creates an attorney-client relationship. If you make a comment on the post, the comment will become public and beyond your control to change or remove it.