More updates on the new Chinese "Federal Circuit"

​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.”

China's Supreme People's Court in Beijing

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:

1. Appeals of first instance civil judgments or rulings made by the Higher People’s Court, IP court or Intermediate People's Court in cases concerning invention patents, utility model patents, new plant varieties, layout design of integrated circuits, know-how, computer programs and antitrust;
2. Appeals of first instance administrative judgments or rulings made by the Beijing IP Court in cases concerning invention patents, utility model patents, design patents, new plant varieties, layout design of integrated circuits;
3. Appeals against first instance administrative judgments or rulings made by the Higher People’s Court, IP court or Intermediate People's Court in cases concerning invention patents, utility model patents, design patents, new plant varieties, layout design of integrated circuits, know-how, computer programs and antitrust;
4. Major and complicated first instance civil/administrative cases referred to in paragraphs (1), (2) and (3) of this article;
5. Cases in which the judgment, adjudication, or mediation decision of at first instance (of the cases referred to in paragraphs (1), (2), and (3) of this article) has already come into effect, against which the retrial or protest has been filed according to law or to the judicial supervision procedures;
6. Cases in which the application for extending the time limit for case hearing or for reconsideration of the jurisdictional disputes, fines, or the detention decisions has been filed regarding the first instance decisions (of the cases referred to in paragraphs (1), (2), and (3) of this article);
7. Other cases that the SPC considers should be tried before the IP Court.

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.