by sun shangwu (china daily)
updated: 2005-08-22 08:49

the supreme people's court (spc) is resorting to judicial interpretations to improve china's legal protection of intellectual property rights (ipr), according to a senior judge.

such interpretations, which enjoy the same legal effectiveness as law articles, can be used as criteria by court judges in making their rulings.

as legislation usually lags behind the requirements of practical conditions, the drafting of judicial interpretation is a very necessary step to deal with the increasing number of ipr violation cases, said jiang zhipei, chief judge of spc's ipr tribunal.

for example, the law against unfair competition has been in effect for more than 11 years. and it is obvious that the law cannot cope with all new issues that have arisen in the market due to the country's rapid economic development.

the standing committee of the national people's congress, the country's top legislature, is considering revision of the law, but the legislative process is taking years due to the complicated market situation.

there are many loopholes in the law in terms of ipr protection, according to zheng chengsi, a researcher with the chinese academy of social sciences.

for example, according to current law only business management staff can enjoy the right of protecting their commercial secrets.

such a stipulation excludes scientific researchers from enjoying such rights and it is not good for encouraging innovation, zheng was quoted by china economic times as saying.

the absence of certain law articles has increased the difficulties for judges to make rulings on some ipr cases, said jiang, noting that foreign ipr laws have more articles and details than the same laws in china.

to deal with new situation in the ipr sector, the spc is working on several judicial interpretations to solve problems left by the absence of certain law articles or law loopholes, according to jiang.

these legal documents include how to deal with lawsuits related to unfair competition, the judging benchmark for patent violations as well as how to handle outstanding issues in rulings concerning newly-developed plant varieties.

jiang said the spc is organizing judges and experts to take part in the work and these interpretations are expected to be made public soon to solicit opinions. no more details of these documents have been made available until now.

since 2000, the spc has promulgated a total of 26 ipr-related judicial interpretations, covering such sectors as patents, trademarks, copyrights, computer network-based copyrights and computer domain names.

"it has helped to form a relatively good judicial system for ipr protection," said jiang.

the spc and the supreme people's procuratorate jointly released a judicial interpretation at the end of last year, to lower the thresholds for ipr offence punishments.

the legal document made it easier to prosecute ipr violations and give out tougher sentences to offenders.

the number of cases concerning ipr violation has increased rapidly this year, but the proportion of overseas cases is still small.

statistics from the spc show that more than 5,000 civil ipr lawsuits were handled by courts at various levels in china in the first five months of this year, up nearly 50 per cent over the same period of last year.

jiang predicted that more cases should be expected in the second half of this year, as many cases will enter the judicial process after the new interpretation was promulgated at the end of last year.

however, less than 5 per cent of these cases relate to overseas companies, according to jiang.

"so the major impetus for china's ipr protection comes from domestic companies, instead of international pressure," said jiang.

against the background of a knowledge-based economy, ipr protection involves the country's development strategy and the national interests, he noted.

protection of ipr is vital for encouraging innovation and creation, and is important for pushing china's economic growth and social progress.

however, he admits that judicial protection of ipr faces severe international challenges. many pirated and inferior products have been found to have links with international criminal gangs.

there are 404 intermediate people's courts and more than 3,000 people's courts at grass-roots level in the country. in order to guarantee authoritativeness and fairness, only intermediate people's courts are authorized to handle ipr cases.

the spc introduced a series of organizational reforms in 2000, giving a big boost to ipr protection in the judicial sector.

since the spc set up a special tribunal in august 1996 to handle ipr cases, all intermediate people's courts in capital cities of provinces as well as the higher people's courts have established special ipr tribunals.