On 26 October 2018, the Standing Committee of China’s National People’s Congress (NPC) issued a Decision to introduce a new IP Court of Appeals at the national level within the Supreme People’s Court (SPC) effective from 1 January 2019.
The Decision provides that a first instance judgment for civil litigation that involves significant technical issues, such as civil litigation involving invention patents, utility model patents, new varieties of plants, layout designs of integrated circuits, technical secrets, computer software, and anti-trust litigation can be appealed to the new IP Court of Appeals. The Decision also specifies that a first instance judgment for an administrative litigation that involves such technical issues can be appealed to the new IP Court of Appeals. The Decision also specifies that cases that involve such technical issues where a first instance judgment, adjudication, or mediation decision came into effect before the effective date of the Decision may be heard by the new IP Court of Appeals if a retrial or protest is filed after the effective date of the Decision.
A first instance judgment for a civil litigation involving a design patent will not be appealable to the new IP Court of Appeals as such cases typically lack technical issues and, therefore, such civil litigation involving a design patent will still appeal to the Higher People’s Court.
The new IP Court of Appeals will be established by the SPC in Beijing by the end of 2018 and is expected to provide more consistent criteria for adjudication in intellectual property cases, thereby strengthening judicial protection of intellectual property and further optimising the Chinese legal environment to promote scientific and technological innovation.
The SPC is currently drafting a judicial interpretation of the Decision of the NPC, further refining and clarifying issues such as case acceptance, trial supervision procedures, and the operation of judicial power, including ability to remand for re-trial proceedings. Further, the SPC will report back to the NPC on the effectiveness of the IP Court of Appeals after three years of operation.
We will monitor further developments, and keep you posted.
Decision of the Standing Committee of the National People’s Congress on Several Issues Concerning Litigation Procedures of Patent and Other Intellectual Property Cases
(Adopted at the 6th Meeting of the Standing Committee of the Thirteenth National People’s Congress on October 26, 2018)
Article 1
If the parties are not satisfied with the judgment or adjudication of the first instance of an intellectual property civil case that involves more technical issues, such as invention patent, utility model patent, new varieties of plants, layout designs of integrated circuits, technical secrets, computer software, anti-trust cases and so on, they shall appeal to the Supreme People’s Court.
Article 2
If the parties are not satisfied with the judgment or adjudication of the first instance of an intellectual property administrative case that involves more technical issues, such as patents, new varieties of plants, layout designs of integrated circuits, technology secrets, computer software, anti-trust cases and so on, they shall appeal to the Supreme People’s Court.
Article 3
For the judgment, adjudication, or mediation decision of the first instance of the above identified cases, that has already come into effect, when the retrial or protest is filed according to the judicial supervision procedure, they shall be heard by the Supreme People’s Court. The Supreme People’s Court may also designate a lower Peoples Court to conduct a retrial according to the law.
Article 4
The Supreme People’s Court shall report to the Standing Committee of the National People’s Congress on the implementation of this decision after three years of its implementation.
Article 5
This decision shall become effective since January 1, 2019.