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Effective January 1, 2019, the Chinese Supreme People’s Court will form a new IP Tribunal to hear IP appeals, including patent appeals, from across the country. IP Appeals against the first-instance judge of the IP courts and Intermediate Court are no longer heard by the Provincial High Court.
The Standing Committee of the 13th National People’s Congress voted to pass the “Decision on Several Issues Concerning the Proceedings of Patent Cases” on October 26, 2018.
According to the Decision, the Supreme People’s Court shall hear the appeals from the parties who are dissatisfied with the first-instance judgments and rulings of intellectual property civil or administrative cases involving invention patents, utility model patents, new plant varieties, integrated circuit layout designs, trade secrets, computer software, monopoly, etc. The Supreme People’s Court may also order the people’s court at a lower level for retrial.
A national level IP appeal forum may unify and standardize the judicial IP enforcement, facilitate and protect scientific and technological innovation.
China recently renamed State Intellectual Property Office to China National Intellectual Property Administration (CNIPA). This represents one step closer to combine both patent and trademark administration into one regulatory body. The CNIPA will have four important functions:
1. Organizing the implementation of the national intellectual property strategy, especially to strengthen the creation, protection and application of intellectual property rights;
2. Promoting the construction of intellectual property protection system, guiding the administrative enforcement of trademarks and patents;
3. Being responsible for the registration and administrative ruling of patents, trademarks, geographical indications of origin; and
4. Coordinating foreign-related intellectual property matters, and conducting foreign intellectual property negotiations.
According to the Thirteenth National People’s Congress, the State Council will reorganize the State Intellectual Property Office. The responsibility of the current State Intellectual Property Office, the responsibility of the State Administration for Industry and Commerce on trademark management, and the responsibilities of the State Administration of Quality Supervision, Inspection and Quarantine on the administration of geographical indications of origin shall be integrated, and the new State Intellectual Property Office shall be reorganized and managed by the State Market Supervision Administration.
On November 4, 2017, the Standing Committee of the Chinese National People’s Congress amended the Chinese Anti-Unfair Competition Law to regulate online market.
The changes target online retailers and will come into effect as of January 1, 2018. The new law forbids business operators from building fake image of themselves to attract new customers. For example, the revised law stipulates that business operators should not deceive consumers by faking sales or employing “click farms” to rack up positive product reviews. The penalties for violation include fines ranging from $30,000 to $150,000 as well as revocation of business licenses in extreme cases.
On July 5, 2017, the Chinese Supreme People’s Court Information Center issued a special report on the judicial data on infringement of intellectual property rights. The number of IPR infringement cases increased by 41.34% in 2016 compared with 2015 to reach more than 70000.
The report shows that, from January 1, 2015 to December 31, 2016, the average period for trial and decision is 105 days for IPR infringement cases. Among them, the counterfeiting of others patents, infringement of the invention patent and infringement of computer software copyright and other nine cases of trial cycles more than the average trial cycle.
World Intellectual Property Organization recently published 2016 Report on Global Patent Cooperation Treaty (PCT) international patent application. The report shows that PCT international patent applications from China reached 43,100, surging 45% over the previous year, ranking third behind the United States (56,000) and Japan (45,000).
From the number of applications point of view, the distance between China and Japan is already very close, while China maintained a higher growth rate. The World Intellectual Property Organization predicts that China will surpass Japan this year, surpassing the United States in two years, ranking first in the world.
On March 12, 2017, Chinese Supreme People’s Court Chief Justice Zhou Qiang pointed out in his annual report to National People’s Congress that in 2016, the Supreme People’s Court issued judicial interpretation on trials of patent disputes and improved the protection of intellectual property rights rules. The “Jordan” trademark case highlighted China’s judicial protection of intellectual property rights. Beijing, Shanghai, Guangzhou Intellectual Property Courts explored the application of punitive damages, made efforts to solve the low cost of infringement, and the high cost of copyright protection. Nanjing, Suzhou, Wuhan, Chengdu set up intellectual property tribunals that have cross-regional centralized jurisdiction of intellectual property cases. The Chinese courts at all levels concluded 14.7 million intellectual property rights related cases in the first instance.
Two years after the establishment of the Beijing, Shanghai and Guangzhou IPR courts, China is considering a national level IPR appeals court. Chinese courts heard 133,863 IPR cases in 2014 with 30,309 cases handled by the Beijing, Shanghai and Guangzhou IPR courts since their founding. In 2015, China State Intellectual Property Office received 1 million patent applications.
On December 8, 2016, Chinese Supreme People’s Court ruled in Michael Jordan’s favor for his right in the Chinese version of his name “乔丹”， which was previously registered as a trademark by a Chinese company – Qiaodan Sports. However, the Court dismissed Jordan’s challenge to the Romanized version trademark, which is “Qiaodan”. The presiding justice is Vice-chief of the Supreme People’s Court, Tao Kaiyuan.