New Pilot Specialized Trial Mechanism of Intellectual Property Disputes Enforced in Shanghai
【Data Source: Website of the SIPO of P.R.C.】
At the one-year anniversary on December 28, 2015, the Shanghai Intellectual Property Court (SIPC) has made efforts to explore how to optimize the innovation of trial mechanism in addition to having a collection of influential, technology-intensive intellectual property cases.
The SIPC determined the "Specialized Trial" as its primary working principle and then announced its "Development Plan of the Shanghai Intellectual Property Court (2015-2017) " (hereafter, the "Plan") in which it clearly proposed to make the SIPC a new burgeoning court directing its development orientation at aspects of "Specialization, Internationalization, Authority, and Influence".
In order to build a new specialized trial architecture, to explore specialized trial procedures and rules for cases involving intellectual property, and to improve the mechanism for finding out technical facts and consolidate the processes of litigious and alternative disputes, the SIPC decided to tentatively implement the "2+1" trial mode to build a "4-In-1" system for investigating and finding technical facts.
I. "2+1" Trial Mode:
Presently, the SIPC judges are selected through an open proceeding by the Shanghai High People's Court from the best candidates with over 8-year experiences in the trials of intellectual property cases from the three-level Shanghai courts. However, as the 12 judges come from different courts, in order to unify their logics and discretions during the judgment making, the SIPC decided to replace the originally featured approach for case assignment based on territorial jurisdiction by the approach of "specialization assignment", so as to ensure the consistency in application of laws among individual tribunals/collegial panels.
According to the Plan, the SIPC will use instead the type of each case as a criterion for case assignment. In particular, Tribunal 1 will be mainly in charge of the trial of cases involving patents, copyrights and anti-monopoly; Tribunal 2 is responsible for the trial of cases involving new plant varieties, layout designs of integrated circuits, technical secrets, computer software, trademarks, unfair competition and determination of well-known trademarks.
According to the Decision of the Standing Committee of the NPC on Establishing Intellectual Property Courts in Beijing, Shanghai and Guangzhou, the SIPC accepts only cases of civil and administrative involving intellectual property rights. On December 22, 2015, the Shanghai Third Intermediate People's Court ("STIPC") accepted for the first time the trial of a criminal case related to intellectual property right, in which, a "cross-field" collegial panel was formed by the STIPC in combination with the SIPC wherein judges from the Tribunal of Intellectual Property participated the trial of this criminal case related to intellectual property right so as to guarantee the unification of logics and discretions during the judgment making for civil, criminal and administrative cases involving intellectual property right to strengthen the judicial protection for intellectual property rights.
In particular, by using this special organization architecture with co-located offices, the SIPC tentatively implement the "2+1" mode, i.e., the SIPC holds the trial of civil and administrative cases involving intellectual property right whereas the STIPC holds the trial of criminal cases related to intellectual property right, so as to indirectly implement concentration of all cases involving intellectual property right, which is a unique advantage of the SIPC over Beijing and Guangzhou Intellectual Property Courts.
Next, the SIPC will explore the establishment of a Special Collegiate Tribunal for Cases involving the Free Trade Zone based on the development trends and features of cases involving the Free Trade Zone, and study corresponding operation mechanism for such Special Collegiate Tribunal based on the features of the types of cases involving patents, computer software, etc. which are closely connected to technical innovations, so as to further improve the specialized trials.
II. "4-In-1" System for Investigating and Finding Technical Facts
Since the SIPC was established one year ago, a specialized "Think Tank" for the trial of cases involving intellectual property right has been set up by inviting 18 special scientific and technological specialists and 18 intellectual property consulting specialists who serve as expert jurors, and in total 1,586 first and second instance civil and administrative cases involving intellectual property right have been accepted for trial, wherein, 996 of them were closed. The cases accepted for trial include 429 cases involving patent, 111 cases involving trademark, 894 cases involving copyright, 32 cases involving unfair competition, and 120 cases involving new plant varieties, layout designs of integrated circuits and others. Of these cases involving intellectual property right, 92% of the first instance cases are cases involving patents, technical secrets and computer software development which are the technical type cases that are difficult to investigate and identify the facts, and therefore, the "4-In-1" measure to find out technical facts must be utilized to further safeguard a specialized and fair judgment.
The so-called "4-In-1" System for Investigating and Finding Technical Facts contains four different principal elements including technical evaluation, technical investigation, technical consultancy and services of expert jurors which are incorporated with each other through some mechanisms, and constitute an integrated System for Investigating and Finding Technical Facts based on their respective responsibility assignments and the working mechanisms. In the future, all cases involving complicated identification of technical facts will be processed by adopting several of these measures depending on the needs of specific cases, i.e., by taking multiple combinatory measures including technical evaluation, investigation, consultancy and services of expert jurors in a single case, to solve the particularly difficult issue of technical facts finding in a case involving intellectual property right.
According to the Plan, a supplementary rule for technical investigation officers’ participation in dealing with the cases has been published recently. The next step will be to actively establish an operation mechanism for technical investigation officers and to improve the objectiveness, accuracy and efficiency in the course of technical facts finding.
III. To Strengthen Specialization Capabilities
In addition to planning architecture of specialized trial and building specialized trial mechanisms, the SIPC also planned to strengthen specialized legal constructions. Next, the Studio of National Judicial Expert Judge Huizhen Chen will be open to the public in Shanghai Zhangjiang Hi-Tech Park on the 26th of every month where the Chief Judge of Tribunal 2 of the SIPC, Huizhen Chen, will provide consulting service about relevant laws. Even seminars and circuit mediation in the Park can be expected in the future.
Finally, for the purpose of enhancing the authority and credibility of the trial of intellectual property cases, it is also planned to resolve conflicts by utilizing social resources. For this reason, the SIPC has signed a Cooperation Agreement on a Diversified Dispute Resolution Mechanism with 7 other social organizations including the Shanghai Commercial Mediation Center, and launched a program for credibility of intellectual property trials evaluation in cooperation with the Tongji University to promote the SIPC's capability of specialized trial.
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