On October 26, 2018, Decisions on Several Issues Concerning the litigation Procedures of Patent and Similar Cases (hereinafter referred to as "Decision") proposed by the Supreme Court was passed during the sixth vote of the Standing Committee of the 13th National People's Congress and will take into effect since January 1, 2019.
This means that, the part of IP cases involving technical issues and requiring more expertise will be heard before a specialized IP tribunal of the Supreme Court for the second instance, in place of those high courts of each province. Noting that an IP tribunal for hearing IP retrial cases has already been established within the Supreme Court, the "specialized IP tribunal" shall be a different one and shall be at a lower level in structure.
So, when a party is not satisfied with a decision made by a specialized IP court or an intermediate court for the following cases, he shall appeal the decision to the IP tribunal of the Supreme Court, once the latter is established.
(1) Civil cases in relation to invention and utility model patents, new plant varieties, layout designs of integrated circuits, technical secrets, software as well as monopoly etc.
(2) Administrative cases in relation to patents, new plant varieties, layout designs of integrated circuits, technical secrets, software as well as monopoly. In China's judicial practice, most of the IP cases relate to patents, trademarks, copyrights, new plant varieties, layout designs of integrated circuits, technical secrets, monopoly, among which, patents mean inventions, utility models and designs. Appeal cases in relation to trademark, copyright and design are not within the jurisdiction of the specialized IP tribunal of the Supreme Court, and shall be heard by the local higher people's courts, though it is still possible for the Supreme Court to hear a trademark, copyright or design case such as during a retrial procedure or during a second-instance procedure when a provincial high court is the first-instance court.
The Supreme Court shall make a pilot report on the implementation of this Decision to the Standing Committee of the National People's Congress three years later.
By integrating the adjudication of civil and administrative cases at the second instance within the specialized IP tribunal of the Supreme Court, the validity procedures and the infringement procedures will be unified with respect to the same references, which helps to reconcile the adjudication disagreement constraining scientific and technological innovation from the perspective of mechanism, enhance case quality and efficiency, establish a sound business environment and improve judicial protection of IPRs, according to Qiang ZHOU, the president of the Supreme Court.
In view of the high volume of IP cases in China and also the fact that the Supreme Court itself is simultaneously the top retrial court and the court directing IP trials and IP policies in the country, the IP tribunal within the Supreme Court may finally grow into an independent IP appeal court.
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