Beijing IP Court Judge: Foreign Plaintiffs Won 100% of Their Cases in 2015

As reported by IAM, Judge Gang Feng of the Beijing Intellectual Property Court provided an update on the IP Courts in China in a presentation given June 2, 2016.  Perhaps most interestingly, he stated that of 63 first instance (i.e., trial level/non-appellate) civil litigations with foreign plaintiffs, the winning percentage was 100%.  All 63 of these foreigner-filed cases were won!  This compares to an overall winning percentage at first instance of 72.3%  Although the number of patent cases among these were not stated, most were likely patent cases due to the court's first instance  jurisdiction.

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There are three IP Courts in China, one each in Beijing, Shanghai and Guangzhou. The Beijing Intellectual Property Court was established in November 6, 2014 for trying IP-related cases on both first instance and second instance level (there are trial and appellate levels, respectively).   The IP Courts may hear the following cases:

1. first instance civil and administrative cases related to patents, new plant varieties, layout design of integrated circuit, technological secrets and computer software;
2. first instance judicial appeals against administrative decisions, such as those from the Trademark Review and Adjudication Board and the Patent Review Board;
3. first instance civil cases regarding the recognition of well-known trademarks; and
4. second instance civil and administrative cases regarding copyright, trademark and unfair competition heard at first instance by the District People's Courts.

Judge Gang then focused on the Beijing IP Court, which initially had 24 judges, but has now almost doubled to 44 judges.  The average ages of the judges is 40 and 91% of them have at least Master Degree.  The Judge noted that he personally had practiced IP trial law for 16 years and tried around 2000 cases.

He then provided several statistics regarding the Beijing IP Court for 2015:

•  Of the 150,000 IP-related cases were received nationwide, nearly 14,000 were received in Beijing. 
• The Court accepted 9,191 cases, with each judge handling 354 cases on average.
• There were 7,545 first instance cases, including 189 copyright disputes, 5,531 trademark disputes, 1,696 patent disputes and 189 other disputes.
• The Court accepted 1,629 second instance cases, including 1,278 copyright disputes, 123 trademark disputes, 16 patent disputes and 212 other disputes.

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Judge Gang classified the cases accepted by the Beijing IP Court into four chief classes:

In 2015, the Court concluded 5,432 cases, with each judge concluding 209 cases on average. Of these, 3,934 were first instance cases, including 59 copyright disputes, 3,245 trademark disputes, 597 patent disputes and 33 other disputes.  1,485 were second instance cases, including 1,196 copyright disputes, 98 trademark disputes, 14 patent disputes and 177 other disputes.  Judge Gang concluded 244 cases himself.  The highest amount of cases concluded by a single judge was 279.

Judge Gang then mentioned that foreign-related IP cases have three principles:

1. The principle of national treatment; 
2. the principle of minimum protection standard; and
3. the principle of public interest.

​The principle of national treatment is the principle that a nation must treat the citizens of other nations in the same way that it treats its own citizens.  That is, it prohibits nations from discriminating against foreign businesses, products, or services or favoring domestic businesses, goods, or services.  It also prohibits a nation from requiring other nations to provide “reciprocity of protection” as a condition of treating their nationals the same as the nation’s own citizens.  The requirement of national treatment applies to a nation’s laws, courts, and government agencies.  This is required by Article 3 of the TRIPS Agreement, which states that, "Each Member shall accord to the nationals of other Members treatment no less favorable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions provided in [existing treaties]....”  The Paris and Berne Conventions also require national treatment in IP protection.

In summary, Judge Gang essentially rolled out the red carpet for foreigners to file IP cases in China.  This is consistent with my observations that the judges and courts have been directed to help create the world's best IP enforcement system, and that they have responded very quickly.  Although the system is not perfect as is no system of enforcement, China has created an excellent system of patent enforcement to which the world should pay attention and respect.  If it is not already, China will soon be the best place worldwide to file patent litigations.