Resources
Jul 20,2022
Newsletter n° 19 News: IP ∣ China’s SPC streamlines intellectual property jurisdictional rules
First published by IAM
Authored by Huimin Qin & Nan Jiang
The water has been murky in terms of the jurisdiction over the first instance intellectual property cases in China. 4 specialized Intellectual Property Courts in Beijing, Shanghai, Guangzhou and Hainan, 27 Intellectual Property Tribunals, numerous competent Intermediate Courts[1] and an array of basic level courts designated by the Supreme People’s Court altogether are exercising jurisdiction over different categories of first instance intellectual property proceedings.
However, the jurisdictional rules expounding the geographical range covered by these courts or tribunals and the jurisdiction thresholds over object of action (in terms of civil proceedings) have been scattered and often not easily accessible to practitioners. The occasional inconsistency and ambiguity of the existing rules, in particular those concerning the basic level courts further complicates the nation’s intellectual property jurisdiction landscape.
In response to the conundrum, the Supreme People’s Court (SPC) promulgates on 20th April 2022, “Several Provisions on the Jurisdiction over First-instance Civil and Administrative IP Cases” (the new Judicial Interpretation) and the “Jurisdiction Thresholds of Basic Level People's Court over First-instance Civil and Administrative IP Cases” to streamline the jurisdiction rules. The new Judicial Interpretation has come into force as of 1st May 2022.
In principle, the new Judicial Interpretation breaks down all the intellectual property proceedings into three categories: 1) those highly technical (as enumerated in items 1 & 2), 2) those less technical (as in item 3) or those pertinent to certain administrative authorities (as in item 4), and 3) those of general nature (as in item 5).
The rationale behind this is that the first two categories of cases are to be adjudicated by the more experienced judges in the specialized IP Courts and competent Intermediate Courts, while the cases of general nature could be delegated to and decided by basic level courts sanctioned by the SPC.
For ease of understanding, the jurisdiction rules stated in Articles 1, 2 & 3 of the new Judicial Interpretations could be delineated as follows:
|
Item # |
First-instance Proceedings concerning |
Governed by |
|
1 |
Civil and administrative disputes over the ownership and infringement of invention patents, utility model patents, new varieties of plants, layout design of integrated circuits, technical secrets and computer software |
l IP Courts, or l Competent Intermediate Courts
|
|
2 |
Civil and administrative monopoly disputes |
|
|
3 |
Civil and administrative disputes over the ownership or infringement of design patents and the recognition of well-known trademarks |
l IP Courts, or l Intermediate Courts (including competent Intermediate Courts and other Intermediate Courts), or l basic level courts appointed by SPC (not applicable to administrative disputes over design) |
|
4 |
Administrative actions involving the ministries, institutions, departments affiliated to the State Council, governments at or above country level or Customs |
Intermediate Courts (ditto) |
|
5 |
Other civil and administrative IP disputes |
Basic level courts appointed by SPC |
The new Judicial Interpretation displays a definite tendency: the SPC is delegating the jurisdictional power over the first instance civil and administrative IP cases to a much bigger pool of courts. There are a few changes that merit attention.
For starters, the new Judicial Interpretation rules out contractual disputes concerning invention patents, utility model patents, new varieties of plants, layout design of integrated circuits, technical secrets and computer software from highly technical cases. These contractual disputes will fall within the remit of the basic level courts or in very rare cases, the higher-level courts if the value of the case exceeds certain thresholds.
The SPC then gives a greenlight to allow intermediate courts and some eligible basic level courts to adjudicate civil and administrative disputes over the ownership or infringement of design patents and the recognition of well-known trademarks.
It is very welcome that the SPC releases the “Jurisdiction Thresholds of Basic-level People's Court over First-instance Civil and Administrative IP Cases”, which explicitly enumerates the geographical range and corresponding threshold of jurisdiction of 556 basic level courts, some of which, such as the 6 basic level courts in Beijing, are given more leeway in docketing cases.
The new Judicial Interpretation leaves the jurisdiction of the IP Courts unchanged. Moreover, the general jurisdictional rules governing civil or administrative litigations that have been in place remain effective, which means if an IP matter is of nationwide or provincial impact, the SPC and the high courts may take the case in the first instance proceeding.
There are also exceptions to the jurisdiction rules though.
In case of any of the following scenarios, the court at a higher level may opt to grant the request of a lower court or to decide of its own accord on moving a case that is originally governed by the lower court, up to its jurisdiction.
- Where a civil or administrative IP case is of new type;
- Where a civil or administrative IP case is intricate or complex;
- Where a civil or administrative IP case is of guiding significance in terms of the application of law.
[1] Competent Intermediate Courts as mentioned in this article refer to the intermediate courts of the cities where the governments of provinces, autonomous regions and municipalities directly under the Central Government are located and the intermediate courts designated by the SPC.