Following the National People's Congress's decision in October 2018 and subsequent rules issued by the Supreme People's Court (SPC), the Intellectual Property Tribunal of the Supreme People's Court of China (IP Tribunal or Tribunal) has been formally established as of January 1, 2019. The Tribunal will serve as the single Second Instance (the effective, and typically final, instance) court for all patent and other IP cases of technical nature nationwide.

This is a significant development that will have far reaching impacts and could fundamentally change how Chinese patents are enforced and the value of Chinese patents overall. Below is a summary of the keys points based the above mentioned decision and rules.

Jurisdiction

The IP Tribunal will adjudicate the following seven (7) types of cases:

1. Appeals of first instance civil case judgments or rulings made by High Courts, IP Courts, and Intermediate Courts nationwide regarding invention patents, utility model patents, new plant varieties, integrated circuit layout designs, technology secrets, computer software or monopoly.

2. Appeals of first instance administrative case judgments or rulings made by the Beijing IP Court regarding examination or invalidation of invention patents, utility model patents, design patents, new plant varieties, or integrated circuit layout designs.

3. Appeals of first instance administrative case judgments or rulings made by High Courts, IP Courts, and Intermediate Courts nationwide regarding administrative decisions involving invention patents, utility model patents, new plant varieties, integrated circuit layout designs, technology secrets, computer software or monopoly.

4. Nationwide first instance civil or administrative cases as mentioned in above sections 1-3 that are significant or complex.

5. Retrial petitions regarding first instance judgments, rulings or mediation agreements that have already taken effect regarding cases as mentioned in above sections 1-3.

6. Jurisdiction disputes, reviews of decisions regarding monetary penalties or detentions, or requests for extension of trial terms regarding cases as mentioned in above sections 1-3.

7. Other cases that the SPC deems appropriate for the IP Tribunal to handle.

The IP Tribunal will take appeal cases for which the above mentioned first instance judgments are made on or after January 1, 2019. Appeals for judgments made prior to January 1, 2019 will continue to be handled by the various High Courts.

Location, Organization and Judges

The IP Tribunal is permanently located in Beijing. However, depending on specific case situations, the Tribunal may conduct circuit trials on the case spot or at the location of the original court.

The IP Tribunal currently consists of:
Six Trial Offices: Mainly responsible for patent cases.
A Technical Investigation Office: Assistance in ascertaining technical facts.
Litigation Service Center: Docketing and process management.
General Office: Relevant general services.

There are now 27 judges, average age 42, at the Tribunal:
1 Chief Judge, 3 Associate Chief Judges, 23 judges;
10 from the SPC, 6 from Beijing High/IP Courts, 2 from the Patent Reexamination Board, and 9 from High/Intermediate/IP Courts of other provinces.
The total number of judges may increase to 50 – 60, depending on caseload.
The IP Tribunal will exist for an initial trail period of three (3) years starting from January 1, 2019, after which the SPC will report to the National People’s Congress regarding the implementation situation for the Tribunal.

Significance

The IP Tribunal will essentially take over all appeals for patent and other technical cases, previously being handled by the more than 30 High Courts throughout the country. This will not only unify judicial standards, but also put the crucial second instance cases in the hands of more experienced and capable judges. We believe that the establishment of the Tribunal will have significant impact on the Chinese patent system. Many people have compared it to the establishment of the Court of Appeals for the Federal Circuit (CAFC) in the U.S. in 1982, which significantly changed the U.S. patent field.

We at China Sinda are following the developments closely and will provide further updates in this regard. Please let us know if you have any questions.