Establishing a national IP appeals court has been a frequent topic of discussion in China since the opening of specialised IP courts in 2014. Recently, the National People’s Congress, China’s national legislator, issued a decision approving the establishment of an IP Tribunal within the Supreme People’s Court. The new IP Tribunal came into effect on 1 January 2019.

 

In our Autumn 2017 Patent Issues edition, we reported on the increasing number of patent lawsuits in China. The figures for 2017[1] continue the trend. The new IP Tribunal will be competent for appeals against first instance civil and administrative judgements or rulings made by the Higher People’s Court, IP court, Intermediate People’s Court, or Beijing IP Court. It will also be competent to hear “major and complicated first-instance civil and administrative cases”[2] brought before these courts.

 

Zhou Qiang, president of the Supreme People’s Court commented:

“A national IP appeal court will also help nurture a favorable legal environment for technological innovation and a better business environment for domestic and international enterprises.”[3]

 

Zhou also commented that the IP Tribunal of the Supreme People’s Court will uniformly examine appeals such as inventions and utility model patents, which will help optimize the rule of law for scientific and technological innovation.

 

Comment

China is an increasingly important forum not just for domestic patent disputes, but for major patent disputes between international companies that extend to the territory of China.

 

For many years, international litigants have perceived, principally through word-of-mouth, that Chinese courts are frequently biased towards domestic litigants. Tactics to address such perceived bias, such as transferring patents to a local Wholly-Foreign-Owned Entity (WFOE) can backfire. What is needed is greater confidence that the courts will apply international standards of fairness.

 

The new IP Tribunal of the Supreme People’s Court is welcome, as it is expected to play a key role in establishing uniformity, predictability and fairness, including fairness between litigants domiciled in China and outside.

 

[1] From the annual Supreme People’s Court 2017 Report on the Situation Regarding Judicial Enforcement of IPR in China (in Chinese)

[2] Article 2 of the Provisions on Issues Concerning IP Tribunal

[3] China Daily

 

You can find this article and others in our Patent Issues Newsletter Spring 2019.