Intellectual Property Protection

by Chinese Courts in 2016

The Supreme People’s Court,

the People’s Republic of China

April 2017, Beijing

Special Remarks:

This paper is published in both Chinese and English. The Chinese version shall be the authoritative version for interpretation purposes.

Introduction

In 2016, under the strong leadership of the Communist Party of China (CPC) Central Committee with President Xi Jinping as the core of the leadership, and the effective supervision of all levels of People's Congresses, the People’s Courts implemented the key tenets set forth at the 18^th CPC National Congress, the Third, Fourth, Fifth and Sixth Plenums of the 18^th CPC Central Committee, the Central Political and Legal Work Conference, and the National Conference on Science and Technology. The courts also studied and observed the spirit of CPC General Secretary Xi Jinping’s key addresses and his new concepts, thoughts and strategies on governance.

The “four consciousness” (sige yishi) were cultivated in the People’s Courts, in that they have strengthened their political consciousness, served the larger good, upheld the centrality of the CPC, and maintained consistency and unity. The courts have also implemented China’s intellectual property strategy and innovation-driven development strategy, and worked hard to “ensure that the people perceive fairness and justice in every judicial case”. They have delivered their adjudication duties as mandated by the Constitution and the laws, and increased judicial protection of intellectual property by adhering to the fundamental policies in intellectual property protection: primacy of the judiciary, strict enforcement of law, differentiated measures, and proportionality. With law enforcement and case handling being the kernel of its work, the judiciary has played a leading role in protecting intellectual property.

The people’s courts have also deepened reform of the intellectual property adjudication system, strengthened adjudication supervision and guidance, improved judicial transparency, and built a highly professional pool of adjudication talents. These efforts have projected the people’s courts as the reliable guardian of intellectual property, served China’s innovation-driven development, and provided strong judicial safeguard in making China a global power-house of intellectual property and science and technology.

I.          Performing adjudication duties to ensure fair and efficient adjudication

At the National Conference on Science and Technology, General Secretary Xi Jinping expressed China’s aim to become a global power-house of science and technology by 2049, the centenary of the establishment of the People’s Republic of China. To achieve this goal, it must promote innovation to spawn new technologies, new industries and new business models.

A sound intellectual property protection regime provides the fundamental assurance to unlock the motive power for innovation. In this case, the judiciary is the most effective, essential and authoritative channel for protecting intellectual property.

In 2016, the people’s courts implemented a judiciary-led intellectual property protection system comprising civil, administrative and criminal adjudication capacities, and have adjudicated many intellectual property disputes fairly and efficiently.

In 2016, a total of 177,705 intellectual property-related cases were accepted, including first and second instance cases and reopened (zaishen) cases, and 171,708 cases were concluded (including carried over cases, ditto hereinafter). Compared to 2015, the respective increases were 19.07% and 20.86%.

(1)   Effective civil adjudication to protect the lawful rights of intellectual property owners

In 2016, the people’s courts have strengthened adjudication of civil intellectual property cases, enforced protection measures and ensured sufficient judicial relief to the intellectual property owners.

In 2016, the local people’s courts accepted 136,534 and concluded 131,813 civil intellectual property cases of first instance, and the respective year-on-year increases were 24.82% and 30.09%; clearance rate was 83.18%, 0.52% higher than 2015. Among the accepted cases, 12,357 were patent cases, an increase of 6.46% from last year; 27,185 trademark cases, which increased by 12.48%; 86,989 copyright cases, a 30.44% increase; 2,401 technology contracts-related cases, a 62.23% increase; 2,286 unfair competition cases (including 156 monopoly cases), a 4.81% increase; and 5,316 cases involving other intellectual property disputes, a 71.87% increase; 1,667 cases were concluded, a 25.62% increase from last year. Among the concluded cases, 1,130 cases involved Hong Kong, Macau or Taiwan parties, representing a 291.99% increase from last year.

The local people’s courts accepted 20,793 and concluded 20,334 civil intellectual property cases of second instance, higher than last year by 37.57% and 35.33% respectively; for reopened civil intellectual property cases, 79 were accepted and 85 concluded, lower than last year by 31.30% and 25.44% respectively.

In 2016, the Supreme People’s Court accepted 369 civil intellectual property cases and concluded 383cases, both of which were more or less the same as the previous year. 7 second instance cases were newly accepted, and 11 concluded; for reopened cases, 319 were accepted and 331concluded; 32 certiorari (tishen) cases were new cases and 32 were concluded.

High profile civil intellectual property cases heard by the people’s courts include: Eli Lilly and Company (plaintiff, appellant) v. Changzhou Watson Pharmaceuticals Co., Ltd (defendant, appellee), an appellate case of inventive patent infringement; Panasonic Corporation (plaintiff, appellee) v. Zhuhai East Kingdom Electrical Appliance Co., Ltd. (defendant, appellant) and Beijing Likang Fuya Trading Co., Ltd. (defendant, appellant), an appellate case of design patent infringement; Shanghai M&G Stationery Inc. (plaintiff) v. Ningbo DeLi Group Co., Ltd. (defendant) and Jinan Kunsen Trading Co., Ltd. (defendant), a case of design patent infringement; Beijing Qingfeng Steamed Dumpling Shop (plaintiff, appellant) v. Shandong Qingfeng Restaurant Management Co., Ltd (defendant, appellee), a reopened case of trademark infringement and unfair competition dispute; Jiangsu Broadcasting Corporation (defendant, appellee) and Shenzhen Zhen’ai Network Information Technology Co., Ltd (defendant, appellee) v. Jin Ahuan (plaintiff, appellant), a reopened case of trademark infringement; Hangzhou Datou Erzi Cultural Development Co., Ltd. (plaintiff, appellant) v. CCTV Animation Co., Ltd. (defendant, appellant/appellee), a case of copyright infringement; Hebei Academy of Forestry Science (plaintiff, appellant/appellee) and Shijiazhuang Lvyuanda Gardens Engineering Co., Ltd. (plaintiff, appellant) v. Jiutai City Gardening and Greenspace Management Division et al. (defendant, appellee), a reopened case of new plant variety infringement.

(2)   Effective administrative adjudication and better supervision and facilitation

The People’s Courts worked towards the goal of developing a socialist rule of law system and applied the revised Administrative Litigation Law. Through judicial review, the courts have exercised effective oversight of granting and validation of intellectual property rights, and strictly regulated administrative law enforcement in intellectual property cases to facilitate “administering according to law (yifa xingzheng) ”.

In 2016, the local people’s courts accepted 7,186 administrative intellectual property cases of first instance. Specifically, 1,123 were patent cases, 5,990 trademark cases, 37 copyright cases, and 36 other administrative cases.

In 2016, the local people’s courts concluded 6,250 administrative intellectual property cases of first instance. 2,394 cases involved foreign, Hong Kong, Macau or Taiwan parties, representing 38.30% of the administrative intellectual property cases concluded at first instance. Among the concluded administrative cases of first instance, administrative decisions were affirmed in 4,241 cases, and revoked in 1,263 cases.

The local people’s courts accepted 3,233 administrative intellectual property cases of second instance, and concluded 3,069, and the respective increases were 44% and 31.77%. Among the concluded cases, the judgements were affirmed in 2,560 cases and reversed in 418 cases, 7 cases were remanded for retrial (chongshen), 49 withdrawn, 20 dismissed, and 15 concluded through other means.

In 2016, the Supreme People’s Court accepted 355 and concluded 352 administrative intellectual property cases, both numbers being nearly the same as last year. Specifically, 282 cases were reopened, and 283 concluded.

High profile administrative intellectual property cases heard by the people’s courts include: Michael Jeffrey Jordan (plaintiff, appellant) v. Trademark Review and Adjudication Board of State Administration for Industry and Commerce (defendant, appellee) and Qiaodan Sports Company, Limited (third party), a reopened administrative case of trademark dispute; Patent Re-examination Board of the State Intellectual Property Office (defendant, appellant) and Novozymes (third party, appellant) v. Jiangsu Boli Bio-Products Co., Ltd. (plaintiff, appellee), a reopened administrative case of inventive patent invalidation; and Château Lafite Rothschild (third party) v. Trademark Review and Adjudication Board of State Administration for Industry and Commerce (defendant, appellee) and Nanjing Gold Hope Wine Co., Ltd. (plaintiff, appellant), a reopened administrative case of trademark dispute.

(3)   Effective criminal adjudication to punish crimes against intellectual property

In 2016, the People’s Courts followed the policy of balancing leniency and harsh penalty for criminal matters, and adopted various criminal sanctions to severely punish and deter intellectual property crimes according to law, protected the lawful rights of intellectual property owners, and maintained socioeconomic order.

In 2016, the local people’s courts accepted 8,352 intellectual property-related criminal cases of first instance, 23.9% lower than last year. Among the accepted cases, 3,799 involved intellectual property infringement crime, 3,565 registered trademark infringement crime, and 195 copyright infringement crime, a 22.67% decrease from last year; 2,765 involved manufacturing and selling counterfeit or substandard goods, a decrease of 29.55% from last year; 1,567 cases were illegal business operations, a decrease of 18.51%; and 221 other cases, a 3.27% increase from last year.

The local peoples’ courts concluded 8,601 intellectual property-related criminal cases of first instance, 20.43% lower than last year. Clearance rate was 89.06%, more or less the same as last year. The number of persons under effective judgements totalled 10,431, 18.13% lower than last year, of which 10,334 were given criminal penalties, a 17.85% decrease. Of the concluded cases, 3,903 cases involved intellectual property infringement crime, and the number of persons against whom judgements were effective was 5,167. Among the intellectual property infringement cases, 2,855 involved manufacturing and selling counterfeit or substandard goods, and judgements became effective against 3,032 persons; 1,551 cases were illegal business operations, and 1,790 persons were subject to effective judgements; in another 292 other criminal cases, the number of persons against whom judgements became effective were 442.

Among the concluded cases involving intellectual property infringement crime, 1,793 involved counterfeiting registered trademarks, where judgements became effective against 2,604 persons; 1,543 involved selling goods bearing counterfeit registered trademarks, where the effective judgements involved 1,823 persons; 311 were cases of illegally manufacturing or selling illegally manufactured registered trademarks, where judgment was effective against 420 persons; 5 involved counterfeiting patent, where judgment was effective against 1 person; 207 copyright infringement crime, where the effective judgements involved 274 persons; 4 cases involved selling infringing reproductions, and judgements were effective against 2 persons; and 40 were cases of trade secret infringement crime, and 43 persons were subject to effective judgements.

For intellectual property-related criminal cases of second instance, the local people’s courts accepted 787, more or less the same as the previous year; 812 cases were concluded, representing an increase of 3.83%.

In 2016, high profile criminal intellectual property cases heard by the people’s courts include: a case of trade secret infringement by Wang Ziping; a case of counterfeiting registered trademarks by Shen Liang et al.; a case of counterfeiting registered trademarks and selling goods bearing counterfeited registered trademarks by Deng Fengcheng, Cheng Xianrong et al.; and a case of trade secret infringement by Peng Fan.

In 2016, the people’s courts’ adjudication of intellectual property cases presented the following four new features:

Highest ever number of cases: In 2016, the number of civil, administrative and criminal intellectual property cases accepted by the people’s courts increased substantially. Of all the cases accepted, 152,072 were first instance cases, representing a 16.80% increase from 2015. Civil cases of first instance increased most substantially, by 24.82%.

In terms of geographical distribution, caseloads have remained high in five provinces and cities, including Beijing, Shanghai, Jiangsu, Zhejiang and Guangdong, where 107,011 intellectual property cases were newly accepted, accounting for 70.37% of the country’s total. In Guangdong and Shanghai, newly accepted cases increased by 22.36% and 20.74% respectively. The caseloads for both Shandong and Fujian have increased by more than 20%. Other provinces where caseload was relatively low in previous years also witnessed big increases. For instance, due to advancing industrialisation and urbanisation, case number in Guizhou grew sharply by 58.20% compared with the previous year. In Chongqing, the courts also witnessed a surge in the number of intellectual property cases accepted, which grew 57.85% from last year. In Hunan and Anhui, first instance intellectual property cases also increased rapidly, up by 52.02% and 45.4% respectively compared to last year.

Increasingly challenges in adjudication: Fact-finding for intellectual property cases, especially technology-related cases, involve complicated technical facts, and hearing such cases pose huge challenges. 2016 saw a significant increase in patent cases involving state-of-the-art technology, joint development of new technologies or application of technological outcomes. This has undoubtedly pose added challenges in terms of fact-finding and the analysis and judging of a case.

In 2016, courts in Shandong recorded a 119% year-on-year increases in cases relating to technology contracts. Of all the first instance cases concluded by the Shanghai Intellectual Property Court, more than 95% were technology-related disputes involving patents, computer software and technological secrets. The Beijing courts concluded a case of administrative dispute, where it invalidated “a nucleotide analogue compound or salt and its synthesis method” inventive patent involving complex pharmaceutical and chemical matters such as the Markush-type claim.

In addition to technology-related cases, there were trademark disputes relating to brand equity protection of well-known companies, copyright disputes involving new internet technologies, and monopoly and unfair competition cases concerning the preservation of market order. These are high-profile cases involving complicated and difficult facts, and required unusual approaches when applying the law, presenting new challenges to intellectual property adjudication. For instance, the “xiaolong” trademark opposition review case heard by Beijing courts involving the FC-1 Xiaolong fighter; Tencent’s The Palace: Lost Daughter (gong suo lian cheng) copyright dispute involving interpretation of the right to transmit works over information networks; and Qihoo 360 and Baidu’s unfair competition dispute involving Robots.txt protocol.

Consistent and improving quality and efficiency in adjudication: First, the percentage of reopened cases has declined significantly. In 2016, despite a 30.09% increase in concluded civil intellectual property cases of first instance, the rate of reversal of decisions and remanding for retrial at the second instance was 5.94%, almost unchanged from last year. Reopening rate has decreased by 45%, and the rate of administrative cases reversed and remanded for retrial at the second instance was 13.85%, representing a 1.56% decrease from the previous year.

Second, the post-mediation discontinuance rate has increased substantially. The local people’s courts recorded a 64.21% post-mediation discontinuance rate for first instance cases and 27.44% for second instance cases, and the figures represent achievement of positive social and legal effects. In Shanghai’s courts, 73.92% of civil intellectual property cases were discontinued after mediation. In Shandong Province, the rate of discontinuance after mediation for civil intellectual property cases of first instance reached 69.70%. In Tianjin Municipality, through coordinated efforts between the three levels of courts and by engaging in judicial activism and clear fact-finding, the several hundred copyright disputes relating to artist Qi Baishi’s works were successfully mediated. Such mediation has enabled relevant parties to resolve their disputes that have been simmering for decades. Having designed innovative mediation methods, the courts in Jiangxi Province have facilitated the signing of copyright licensing agreements between more than twenty entertainment companies with collective management organisations. This has helped defuse social tensions and helped regulate the copyright market and reduce social costs.

Third, the number of concluded cases grew significantly. In Chongqing Municipality, the number of concluded intellectual property cases of first and second instances increased 62.74% from 2015; in Hunan Province, concluded first instance intellectual property cases grew by 48.79%; in Guangdong Province, concluded intellectual property cases increased by 42.82%; and in Jiangsu Province, concluded first instance intellectual property cases increased by 30.8% from last year.

Increased the amount of damages awarded: The People’s Courts have been experimenting with using market value as the benchmark for determining damages in intellectual property cases, and have increased the protection of critical core technologies and well-known brands according to law. With the attorney’s fee and other reasonable litigation costs properly factored in and punitive damages imposed when necessary, the quantum of damages was set to correspond with the market value of intellectual property. 

In Panasonic Corporation v. Zhuhai East Kingdom Electrical Appliance Co., Ltd. and Beijing Likang Fuya Trading Co., Ltd., an appellate case of design patent infringement, the Beijing High People’s Court ruled in favour of Panasonic Corporation’s full claim for damages worth 3 million yuan. In another two appellate cases involving the “ziyu” trademark infringement and repeat copyright infringement by Sursen Digital Technology Co., Ltd, the Beijing Intellectual Property Court also found in favour of the intellectual property owners’ claim for full damages.

At the same time, the People’s Courts have severely punished bad faith behaviour during litigation. Procedural or substantive sanctions were imposed according to law against such acts as falsifying evidence, misrepresentation, deliberately delaying production of evidence beyond the time limit, destroying evidence, or witness tampering. In a patent infringement case involving the Qingdao CO-NELE Machinery Co., Ltd as the plaintiff, the Beijing High People’s Court imposed a 500,000-yuan fine on the party that refused to obey the court’s preservation order that became effective.

II.       Advancing judicial reform to improve the adjudication system

2016 marks the beginning of the 13^th Five Year Plan period. It is also a breakthrough year for the People’s Courts in terms of comprehensive deepening of judicial reform. Committed to the reform agenda and determined to break new grounds, the People’s Courts have taken targeted measures to further revamp the judicial systems and mechanisms, and to modernise the intellectual property protection regime and capacity.

(1)   Promoting the development of intellectual property courts

In 2016, intellectual property courts in Beijing, Shanghai and Guangzhou have carried out their work systematically and fulfilled their judicial functions effectively. Their judges have acted in concert and leveraged technological and systemic innovation to enable more professional, detailed and law-based practice. As the reform measures continued to produce positive and exemplary effects, the intellectual property courts saw growing credibility and international influence, portraying a new image for China’s intellectual property protection regime. The intellectual property courts took the lead in initiating certain judicial reforms, such as having the chief justice and division chiefs hear cases regularly, changing the adjudication committee’s functions, and exploring different ways for the adjudication committee to hear cases. The results of such initiatives were encouraging.

In 2016, the total number of civil and administrative intellectual property cases accepted by the above three intellectual property courts was 17,268 cases, among which 14,896 were concluded. Clearance rate was 86.26%. The Beijing Intellectual Property Court advanced the development of its case guidance research base; the Shanghai Intellectual Property Court has help in the development of Shanghai into a technological innovation hub; and the Guangzhou Intellectual Property Court has engaged in vigorous research in market-based operations of intellectual property. These are efforts that provide a new facelift for China’s intellectual property adjudication practice.

The Intellectual Property Division of the Supreme People’s Court delved into the difficulties and problems of the intellectual property courts’ reforms and development and completed a report entitled “Establishing Intellectual Property Courts and Their Work Progress”. SPC’s Intellectual Property Division also conducted studies for its research project entitled “Major Issues in the Establishment of Intellectual Property Courts” to provide practical guidance to improve the intellectual property appeal mechanism.

(2)   Intensifying the “three-in-one” adjudication reform

2016 saw major progress and breakthroughs in the “three-in-one” adjudication of intellectual property cases. Other than the intellectual property courts, the “three-in-one” operation, which combines the adjudication of civil , administrative and criminal matters, has been launched in all other People’s Courts.

On 5 July, the “Opinions on Implementing the ‘Three-in-One’ Adjudication of Intellectual Property-Related Civil, Administrative and Criminal Cases at the National Level” was issued. On 7 July, the Supreme People’s Court convened a meeting in Nanjing of Jiangsu Province to plan and roll out the “three-in-one” operation nationwide. “Three-in-one” adjudication has since taken on a new dimension.

Currently, the Supreme People’s Court is communicating with the relevant departments on the prosecution of intellectual property crimes so that the relevant documents could be jointly issued at an early date to advance “three-in-one” adjudication. This will improve the judiciary’s overall effectiveness in intellectual property protection.

(3)   Setting up specialised intellectual property adjudication organs

The Supreme People’s Court drafted the plan for establishing specialised intellectual property adjudication organs in Nanjing, Jiangsu, Wuhan and Chengdu and their jurisdictions. In early 2017, the above organs were established and began accepting cases. The Nanjing Intellectual Property Division and Suzhou Intellectual Property Division were respectively established under the Nanjing Intermediate People’s Court and the Suzhou Intermediate People’s Court. Each division will operate independently, and will exercise, within the province, cross-regional jurisdiction over patent and technology-related first instance civil cases. The Intellectual Property Division in Wuhan has adopted the “three-in-one” model and has jurisdiction for civil, administrative and criminal intellectual property cases in Wuhan, and patent and technology-related first instance civil and administrative cases in Hubei Province. Chengdu court’s Intellectual Property Division exercises cross-regional jurisdiction within Sichuan Province for patent and technology-related first instance civil and administrative cases.

(4)    Refining the fact-finding mechanism for technical facts

A sound technical fact-finding mechanism is essential for ensuring fair adjudication in intellectual property cases.

The Intellectual Property Division of the Supreme People’s Court has issued the “Provisional Regulations on Several Issues Concerning Technical Investigation Officers of Intellectual Property Courts Participating in Litigation Activities”, and is currently working diligently to develop guidelines for the selection and appointment of technical investigation officers.

The Shanghai High People’s Court has formulated the “Guidelines on Forensic Examination of Technical Facts in Civil Intellectual Property Litigations”, and has improved the multiple mechanisms for technical fact finding.

The Beijing Intellectual Property Court has set up a Technical Investigation Office and formulated “Administration Rules for Technical Investigation Officers”. In 2016, the court’s number of concluded cases relative to the number of case accepted increased by 27.5% over the previous year.

The Guangzhou Intellectual Property Court organised a technical expert advisory committee consisting of 29 experts from administrative organs, universities and research institutes to provide professional inputs on the court’s adjudication work. In 2016, the court heard 88 cases that relied on technical experts or technical investigation officers, and the rate of post-mediation discontinuance of action was 64.7%.

The Guizhou Province High People’s Court cooperated with Guizhou Provincial Department of Science and Technology to appoint science and technical experts to advise the court on cases involving specialised technical knowledge to ascertain the technical facts during fact-finding.

The Sichuan Province High People’s Court has selected experts from such areas as electronic information technology, mechanical manufacturing, medicine, and new plant varieties and formed a roster of technical experts on intellectual property to buttress its technical fact-finding system.

(5)    Improving the alternative dispute resolution mechanism

Increasing intellectual property caseload has put the People’s Courts resources under severe strain. A stronger and better ADR mechanism is of practical importance for the judiciary to deliver quality and efficiency in intellectual property protection.

The Beijing courts have strengthened coordination with organisations such as the Beijing Intellectual Property Reporting and Complaints Centre and the Internet Society of China’s Mediation Centre. They have mobilised administrative organs, industry associations and civil society organisations in resolving disputes resolution through conciliation.

The Shanghai Intellectual Property Court has established cooperation with ten social organisations and institutes, such as the Mediation Centre of the Internet Society of China, Shanghai Software Industry Association, Shanghai Biopharmaceutics Industry Association, the Civil and Commercial Mediation Committee of Shanghai Federation of Industry and Commerce, and Shanghai Oriental Notary Public Office. Together, they set up ADR cooperation mechanisms and aligned the litigation and non-litigation processes. By complementing each other and sharing resources within the ADR system, the court and its partners have promoted pre-trial mediation and aligned the litigation and mediation processes. In 2016, the Shanghai Intellectual Property Court referred 96 cases for pre-trial mediation with the parties’ consent, and successfully mediated 23 cases.

By leveraging the advantages of industry associations and scientific and technical experts, the courts in Fujian Province have implemented mediation by appointment of the court, or by industry associations and technical experts. This allows the strengths of different channels to be synergised, and in turn, a large number of intellectual property disputes to be fairly and effectively resolved.

III.    Strengthening supervision and guidance to unify standards for judicial decisions

Unifying decisions through harmonised standards provides fundamental value in improving the judiciary’s credibility and authority. In 2016, the People’s Courts continued to strengthen their work in terms of issuing judicial interpretations and developing judicial policies, and improved the work mechanisms for adjudication supervision and management. Also, much effort was dedicated to elevating the standard of adjudication of intellectual property disputes and to ensuring uniformity in judicial decisions.

(1)    Strengthening judicial interpretation and judicial policies

 Formulation of the “Supreme People’s Court’s Interpretation (II) of Issues Regarding the Application of the Law When Adjudicating Patent Infringement Disputes”: Approved by the Supreme People’s Court’s Adjudication Committee on 25 January 2016 and effective on 1 April 2016, the Supreme People’s Court’s judicial interpretation provides clarity on application of the law pertaining to matters such as determination of patent infringement, choice and interpretation of patent claim, similar designs, indirect infringement, conflicting application defence, standard application defence, production or business purposes, lawful source (innocent infringer) defence, computation of damages, and application of Article 47 of the Patent Law, and will effectively enable the correct application of the Patent Law.

Formulation of the “Supreme People’s Court’s Regulations on Issues Regarding Adjudication of the Granting and Validation of Trademark Rights”: Based on the Supreme People’s Court’s “Opinions on Issues Regarding the Granting and Validation of Trademark Rights in Administrative Disputes”, and approved by validation’s Adjudication Committee on 12 December 2016 and effective on 1 March 2016, the regulations aim at addressing salient problems in judicial practice by detailing the approaches in dealing with the key problems in granting and validating trademark rights for administrative cases and the practical difficulties encountered during adjudication. The regulations cover substantive aspects such as scope of examination, determination of distinctiveness, protection of well-known marks, and protection of the prior rights of copyright and right of personal name, and procedural matters such as violation of statutory procedure and ne bis in idem. Essentially, they embody the Supreme People’s Court’s practical experience in adjudication and in improving the standard in application of law in the granting and validating trademark rights, and hold great significance in respect of the judiciary’s efforts in inculcating the notion of honesty and integrity, in developing a good discipline in trademark application and registration, and in unifying adjudication standards.

Formulation of the “Outline of the Judicial Protection of Intellectual Property in China”: Divided into seven sections, namely “Foreword”, “Achievements”, “Guiding Concepts”, “Fundamental Principles”, “Key Objectives”, “Key Measures” and “Concluding Remarks”, the outline is exposits the guiding tenets and objectives of intellectual property protection for the People’s Courts in the next five years, defines the principles and measures with regard to protection, and sets forth the development roadmap and blueprint. It also plugs gaps by setting forth the direction and solutions to address the bottlenecks of judicial practice, thereby ensuring healthy development. This outline is the first of its kind targeting at a specific area of adjudication and issued by the Supreme People’s Court. It is a measure that reflects the steps which the Supreme People’s Court has taken to implement the Party Central Committee’s core values, and embodies the Supreme People’s Court’s efforts to strengthen property protection and incorporate new concepts of economic development in the judicial protection of intellectual property. It is also an important outcome of the Supreme People’s Court’s fulfilment of the spirit of President Xi Jinping’s important addresses, and its use of President Xi’s new concepts, thoughts and strategies in governance and administration to provide direction for the judicial protection of intellectual property. The outline was released during National Intellectual Property Week in celebration of the“26 April World Intellectual Property Day”.

The Supreme People’s Court has also stepped up efforts in studying the “Supreme People’s Court’s Interpretation of Issues Regarding the Application of law Pertaining to Matters on Preservation during Adjudication of Intellectual Property and Competition Disputes” and “Supreme People’s Court’s Opinions on Issues Relating to Leveraging the Leading Role of Judicial Protection of Intellectual Property to Accelerate Development of an Intellectual Property Power”. By improving judicial interpretations and judicial policies, the Supreme People’s Court could better supervise and guide the courts in the protection of intellectual property.

(2) Strengthening adjudication guidance and research study

Drafting and revision of laws: The courts have actively participated in the drafting ad revision of various laws and regulations, including the Civil Code, Patent Law, Copyright Law, Anti-Monopoly Law, Seed Law, Rules of Implementation of the Trademark Law, provided inputs for their revisions, and recommended incorporation of intellectual property laws in the Civil Code. To study the amendment of the Patent Law, the Supreme People’s Court has formed a special inter-agency research team to study and review systematically the implementation outcomes of the Patent Law.  The Supreme People’s Court drew on its experience of thirty years and examined in-depth the difficulties and problems relating to adjudication of patent disputes, and submitted to the State Council Legislative Affairs Office general recommendations and recommendations on amendment of specific provisions.

Thematic studies on application of law:

Many courts have initiated thematic studies to strengthen capacity in the application of law.

Supreme People’s Court: Organised a research study on “guidelines on intellectual property protection of business models and other new forms of innovative outcomes” to analyse the issues on the application of law during adjudication of civil disputes relating to movies and works created using methods similar to movie production, and the copyright collective management the system; worked with All-China Federation of Industry and Commerce to initiate a special study on intellectual property protection of private enterprises; participated in the crackdown of “headline-flagging gangs (biaotidang)” (i.e. using an alarming and unrelated title to an article to attract attention) to provide legal support in cleaning up the internet environment.

Beijing High People’s Court: Conducted research studies and published the “Beijing High People’s Court’s Manual on Adjudication of Cases Involving Cyber infringement of Intellectual Property”, which provided questions and answers on adjudication of cases relating to the granting and validation of trademark and patent rights.

Shanghai High People’s Court: Conducted studies on “legal issues relating to multiple licensing of trademarks”, “copyright infringement involving deep linking” and “protection of computer software patents”.

Jiangsu Province High People’s Court: Conducted study on “possible legal issues relating to supply-side structural reform and the judicial responses”; completed research reports as the “Research Report on Issues Relating to Adjudication of Cases Involving Trademark Infringement Disputes” and “Adjudication Criteria for Patent Cases under the Context of Technological Innovation”.

Hunan Province High People’s Court: Completed key soft science research relating to intellectual property rights, such as the “Study of the Discovery Mechanism for Technological Facts in Intellectual Property Cases” and “Study on the Conflict and Coordination of the Administrative Protection and Judicial Protection of Intellectual Property”.

Guizhou Province High People’s Court: Completed research report on “Intellectual Property Protection of Guizhou Tea: Models, Issues and Strategies” and key research topic “Protection of Intangible Cultural Heritage”.

Jilin Province High People’ Court: Conducted studies on Korean (Chosun) medicine and drugs to facilitate protection of TCM intellectual property.

Communicating and sharing with administrative agencies:

Supreme People’s Court: Conducted operational exchanges with the Patent Re-examination Board (PRB) of the State Intellectual Property Office (SIPO) to further clarify and unify the laws and regulations pertaining to granting and validating rights; organised operational exchanges with the Chinese Trademark Review and Adjudication Board (TRAB) and held in-depth discussions on the application of laws relating to trademark protection; initiated with the Bureau of Seed Management, Ministry of Agriculture, a joint-study on the revision of the judicial interpretation of protection of new plant varieties.

Beijing High People’s Court: Held seminars with the State Administration of Industry and Commerce’s (SAIC) Trademark Office, TRAB and SIPO’s PRB to discuss specific issues relating to application of law.

Inner Mongolia High People’s Court: Communicated and coordinated with the cultural market administration authorities to resolve the series of cases involving copyright infringement by Karaoke operators, and has preliminarily put together a three-tier copyright royalty tariff for the Huhhot Municipality.

Using cases to guide adjudication: The Intellectual Property Division of the Supreme People’s Court publishes representative cases (dianxing anli) regularly, and also prepares and issues “Adjudication Guidelines for Intellectual Property Disputes” and the “Annotated Intellectual Property Guiding Cases”. It issued its 16^th set of guiding cases, among which is the Qihoo 360 vs. Tencent case on abuse of dominant market position, which was published on 6 March 2017. The Supreme People’s Court’s case guidance and research (Beijing) base reviewed the case guidance practice and initiated the relevant research studies.

IV.     Implementing open justice to create a law-based environment that conduces to judicial protection

“Justice must not only be realised, but be tangibly realised.” In 2016, the People’s Courts have intensified efforts in promoting open justice by focusing on developing “sunshine justice” typified by open, dynamic, transparent and user-friendly features. By facilitating the transformation and upgrading of the open justice system, the courts hope to enable a more regulated, effective, sensitive and balanced system.

(1)    Strengthening open justice to promote fair trial

Open court for major cases: During the “26 April World Intellectual Property Day” outreach period, the Supreme People’s Court heard the Michael Jeffrey Jordan vs. TRAB and Qiaodan Sports Co. Ltd. case in an open court, the presiding judge of which was Vice President Tao Kaiyuan. Hearing and decision was broadcasted live in all media and the court proceedings were observed by diplomats from the United States, European Union, Japan and Korea, as well as representatives from the US Chamber of Commerce. Xinhua News, China Central Television (CCTV) and Singapore’s Lianhe Zaobao were among the more than two dozen local and foreign media companies that sent their journalists to observe the entire proceeding, which was seamlessly delivered in real time on www.chinacourt.cn and the Supreme People’s Court’s official microblog Sina Weibo. The Supreme People’s Court’s Sina Weibo alone recorded more than 1.5 million viewings of the full live broadcast, with a total exposure of more than 98 million times. Open hearing of the case demonstrates to the world the openness and transparency of China’s courts, and the good practice of fair justice and equal protection of the lawful rights of both local and foreign parties.

Ensuring public availability of written rulings and judgements: The People’s Courts have continued to improve the management of online publication of written rulings and decisions, such that those suitable for making public will be promptly uploaded online for public supervision. Openness engenders fairness, and the people will truly feel equity and justice delivered by the judicial system.

Continued efforts in promoting open court proceedings: The courts promoted open court proceedings by promptly uploading case proceedings information onto the China Judicial Process Information Online to ensure protection of the parties and the people’s right of knowledge and right of supervision.

(2)    Strengthening exchanges and cooperation to improve the image of the judiciary

By using the China International Exchanges (Shanghai) Base for Judicial Protection of Intellectual Property Rights as platform, the Supreme People’s Court built a more robust international and regional exchange mechanism for judicial protection of intellectual property, and strengthened exchanges and cooperation with international organisations and other countries. Representatives from the courts participated in the U.S.-China Rule of Law Dialogue, working group meetings under the EU-China IP Dialogue mechanism, free trade agreements intellectual property chapter negotiations. The representatives also participated in various work group meetings involving foreign counterparts, such as the China-Switzerland, China-U.S., China-Australia, and China-Russia intellectual property work group meetings, and submitted written recommendations. Representatives were sent to the United States and Europe for study visits. The Supreme People’s Court representatives also participated in the Seminar on “Enforcement of Plant Breeders’ Rights under the UPOV Convention” organised by Hanoi, Vietnam, and the Briefing on China’s Intellectual Property Protection regime organised by Korea.

The Shanghai High People’s Court organised a successful EU-China Judges' Forum on “Innovation-Driven Economy and Intellectual Property Judicial Protection”. This pre-eminent international meeting was well-participated by officials from more than a dozen countries, regions and international organisations, personnel from judicial authorities, and business representatives.

The Chongqing High People’s Court and the Southwest University of Political Science and Law jointly organised several “China Intellectual Property Judges’ Forum”.  The Shanghai High People’s Court collaborated with the East China University of Political Science and Law and Tongji University to jointly establish a cooperation mechanism, and worked with the Shanghai University of International Business and Economics and the Shanghai University of Political Science and Law to set up a legal services volunteer mechanism.

(3)    Broadening outreach channels to facilitate regular publicity activities

The intellectual property outreach week organised by the Supreme People’s Court in celebration of the “26 April World Intellectual Property Day” has become a regular feature in IP judicial publicity. Other publicity activities include the “Judicial Protection for Intellectual Property: Wayfaring in Zhejiang” activity for central-level media, media briefing and press conferences, white paper on “Judicial Protection of Intellectual Property Rights in Chinese Courts (2015)”, the “Ten Major Intellectual Property Cases” and “Fifty Representative Intellectual Property Cases” adjudicated by Chinese Courts in 2015, and the “Supreme People’s Court Annual Report (2015) on Intellectual Property Case”.

Local courts also worked hard at expanding their publicity channels for effective publicity.

The Jiangsu Province High People’s Court set up the “Intellectual Property Horizons” column in its Sina Weibo microblog account and a WeChat Public Account as platforms to communicate and review their experience in adjudicating major and challenging intellectual property cases.

The Jiangsu Province High People’s Court created a section called “IP Convergence (zhi zhi hui)” in its website (www.zjcourt.cn) for sharing of intellectual property-related information. Viewership for the year exceeded 190,000 hits.

The Guangdong Province High People’s Court requires that for cases to be eligible for participation in the “Outstanding Trial” award, hearing must be broadcasted live online. For cases that attract public concern, such QVOD Technology Co., a video-streaming website operating under Chinese name “Kuai Bo” involving the imposition of administrative sanction, and “If You Are the One (fei cheng wu rao)” TV dating show involving trademark infringement dispute, hearing was delivered in real time on the court’s website.

To improve communication, the Shanghai Intellectual Property Court created a Chinese/English bilingual website and an official microblog and WeChat public account, accepted media interviews, and published 156 articles on media publications, such in Xinhua News and CCTV.

The Shaanxi Province High People’s Court broadcasted five cases live and announced its decision for all five cases during the 26 April IP Outreach Week. They are cases of a new genre that have attracted public concern and that are representative and challenging. The activity was reported in Xi’an Daily and the People's Court Daily.

V.       Strengthening people development to improve overall the quality of the adjudication team

People development provides the basis and assurance in judicial protection of intellectual property. The courts must fully appreciate the Party and the country’s overall circumstances and the resulting new demands on people development in the intellectual property adjudication team. As such, they must observe strict discipline in party governance and follow the requirements under the “Opinions on Strengthening Development of Political and Legal Personnel under the New Circumstances” to build an IP adjudication team that is steadfast in belief, that delivers justice for the people, that takes full accountability in their work, and that is clean and uncorrupted.

(1)    Strengthening formation of ideological and political thoughts to elevate political calibre

People development for the intellectual property adjudication team has always followed the Party’s leadership and focused on honing the “four consciousness (sige yishi)” (i.e. consciousness in terms of strengthening political integrity, employing a broad perspective, upholding the core leadership, and ensuring alignment with the Party and country’s direction). It also meant learning and following through the spirit of President Xi Jinping’s key addresses, adhering to the China-specific socialist rule of law approach, such that our minds, our political ideology and our actions highly aligned with the Party Central with comrade Xi Jinping as the core leadership.

Other important efforts are the “two learning and one being (liangxue yizuo)” activity where learning involves studying the Party’s constitution and rules and the series of key addresses, and being involves becoming a qualified Community Party member; acquiring moral and humanist qualities from the excellent Chinese tradition and culture; upholding the advanced principles of socialism and the sound tradition of people-based justice; and voluntarily practising and stalwartly safeguarding  the core value system of socialism.

(2)    Strengthening the ability to discharge duties so as to elevate professional capabilities

Improving the ability to perform duties is an important people development goal for the intellectual property adjudication team. Thus, development of such ability must be substantially strengthened for continued improvement of adjudication quality. Development also aims to produce a huge pool of IP judges with macro perspective and has an international outlook, and who know the law, has the skills, and who possess inter-disciplinary knowledge, thereby enabling them adapt to the new era where knowledge is renewed and judicial practice develops rapidly.

The Supreme People’s Court organised a national training for intellectual property judges, during which Vice President Tao Kaiyuan gave a special lecture. The local courts also organised many activities. To broaden training possibilities the Beijing High People’s Court combined its annual training and seminar. The Beijing Intellectual Property Court organised different types of sharing sessions for senior judges to train and transfer their experience to younger judges. The Shanghai High People’s Court held the “Legal Economics Advanced Level Seminar” and the “Legal Economics and Anti-Monopoly Advanced Level Seminar” to improve the judges’ theoretical knowledge and professional capabilities. The Anhui Province High People’s Court included its new operational rules and new adjudication concepts into its group learning curriculum, and used its department WeChat group to expand its learning platform beyond the official “eight hours”. The Hainan Province High People’s Court proposed the “one main theme, two integrations, three forms of party branch, four consciousness, five major developments, and six principles (yitiao zhuxian, liangge jiehe, sanxing dangzhibu, sizhong yishi, wuda fazhan, liuge yuanze)” work methodology to integrate and advance the various aspects of work.

(3)    Strengthening development of the judiciary’s behaviour to create a good image

To forge iron, one needs a strong hammer. A strong team begets a flourishing undertaking; therefore, building a clean judiciary is integral to people development.

All our courts must ensure that they deal with both the symptom and the cause, and must delve deep when nurturing a good party ethos and clean administration and fight corruption. They must adhere to a stringent standard in education, management and supervision, and employ a zero-tolerance policy in punishing judicial corruption to ensure fair and clean justice.

At the individual level, the courts have strengthened people development by honing political character to build loyalty to the Party, by developing strict self-discipline, and by facilitating the drawing of lessons from cases involving violation of law and discipline. In doing so, any inclination of wrongdoing could be discover in time and further mistakes prevented. Also, by educating family members to create a family ethos of honesty and emphasising use of family bonding to strengthen anti-corruption measures, family members could become “gatekeepers” for the adjudication team.

Conclusion

2017 is an important year for implementing the 13^th Five Year Plan. It is also a deciding year for furthering reform of the judicial system, and a year which judicial protection of intellectual property makes big strides in development.

Judicial protection of intellectual property by the People’s Courts will follow through the spirit of President Xi Jinping’s important addresses and his new concepts, thoughts and strategies in governance and administration, and will capitalise on the historic opportunities brought forth by the new round of technological revolution, and adapt to the new changes in the international landscape and the new normal in economic development. They will cultivate the “four consciousness”, and implement the National Intellectual Property Strategy fully, improve the system of property right protection, and protect property rights according to law. All the above efforts will be carried out in observance of the “five areas in one (wuwei yiti)” framework where the economy, politics, culture, society, and the environment are jointly reformed, the requirements of the “four comprehensive (sige quanmian)” strategy, and the development notion of “innovation, coordination, greenness, openness and sharing”.

The courts will focus on achieving the goal of “working hard to ensure that the people perceive fairness and justice in every judicial case”. They will abide by the tenets of justice for the people and fair justice, leverage the leading role of the courts in the protection intellectual property, and strengthen judicial protection of intellectual property. They will also create a good legal environment to support implementation of the national strategy of innovation-driven development, and provide strong judicial protection to build a global power in intellectual property and technology. Indeed, the courts will usher in the successful convening of the 19^th National People’s Congress of the Chinese Communist Party with their magnificent results.