judicial protection of intellectual property in china

jiang zhipei, the chief justice of the intellectual property right tribunal of the supreme people’s court of p.r.china

ladies and gentlemen:

i would like to introduce the condition of china’s judicial protection of intellectual property of people’s courts in 2005 and the main measures on enhancing the judicial protection of intellectual property in china.

1.       the condition of china’s judicial protection of intellectual property in 2005

in 2005, china courts at various levels throughout the country fully played their criminal, civil and administrative functions, overall enhanced trial work relating infringing intellectual property under the supervision of the spc. they timely accepted prosecutions concerning intellectual property, paid great efforts on developing trial quality and work efficiency, imposed severe punishments on those who committed criminal actions concerning infringing intellectual property, increased the civil liabilities of breaching parties, overall strengthened judicial protections on intellectual property, and promoted innovation and technology progress, as well as china’s special market economic order of honesty, trust and fair competition, the legal sense of whole nation on respecting and protection intellectual property has been developed, judicial and social environment for protection intellectual property has been further improved.

1). enhanced criminal judicial protection on intellectual property

in 2005, chinese courts fully developed criminal prosecution functions, accepted and concluded cases concerning infringing intellectual property on time, strictly punished infringement acts relating intellectual property, and the protection power of judicial protection on this area has been enhanced.

last year, accepted and concluded cases concerning intellectual property increased rapidly. china courts at various levels throughout the country accepted total 3567 first instance cases, an increase of 28.36% over the previous year. in which, 524 cases related to criminal infringing intellectual property, an increase of 35.4%, 1117 were fake products sales cases, an increase of 16.48%, 1926 were illegal business cases, an increase of 34.4%. total concluded 3529 criminal cases concerning infringing intellectual property nationwide last year, an increase of 28.28% over the previous year.

the concluded cases committed offences and punished with fixed-term imprisonment rose obviously. china courts at various levels punished 5336 criminals, an increase of 30.66%, in which, 5319 people committed offences, accounted for 99.68%; 2963 people were punished with fixed-term imprisonment, accounted for 55.53%, an increase of 23.9%. among the concluded criminal cases, 505 of which concerning infringing intellectual property, involving 741 people of effective judgment; 1121 cases concerning production and sale of fake products, involving 1942 people of effective judgment; 1903 cases concerning illegal business, involving 2653 people of effective judgment.

2)      enhanced civil judicial protection of intellectual property

in 2005, china courts at various levels fully developed functions of civil trials, timely accepted various cases relating intellectual property, paid more attentions on developing judicial quality and work efficiency, strictly judged the infringing cases and ordered the obligee and breaching parties to take civil responsibilities, punished them with civil offences, adopted injunction before judicial actions according to laws, which enhanced the judicial relief to obligee and parties of no breaching, as well as further developed civil judicial protection on intellectual property..

last year, accepted and concluded civil cases concerning infringing intellectual property in national local courts at various levels increased by a big margin. total accepted 16583 cases of illicit competition, including cases of first instance, second instance and rehearing cases, an increase of 20.66% over the previous year; concluded 16453 of them, an increase of 29.6% over the previous year. the new cases of first instance reached 13424, an increase of 26%. in which, 6096 were copyright cases, an increase of 42.96%; 2947 were patent right cases, an increase of 15.61%; 1782 were trademark right cases, an increase of 34.49%; 1303 were illicit competition cases, a decrease of 2.1%; 636 were technology contract cases, up 0.95%; 156 were new plant breed cases, a decrease of 10.26%; other intellectual property cases reached 504, up 31.59%. concluded cases of first instance were 13393, an increase of 38.04%, total amount of lawsuit reached 2.612 billion yuan; average amount of each case was 195,000 yuan. new cases of second instance reached 3114, an increase of 2.4%; concluded 3016 of them, an increase of 3.04%. new cases of rehearing reached 45 and concluded 44.

accepted civil cases relating intellectual property in last year have following features: 1.civil cases concerning intellectual property centered at infringement and ownership, which accounted for 89.02% of the new cases. 2. the regional distribution of such cases was uneven, which centered at the economic developed regions and cities such as guangdong, beijing, jiangsu, zhejiang, shandong and shanghai. in 2005, such cases of first instance from these regions accounted for 65.38% of the country. 3. high rate of mediation cases, china courts at various levels stressed on mediation of legal action, total 7247 cases of first instance mediated and withdrawn, accounted for 54.11% of total first instance cases. 4.the penalty amount of decree increased and saw obviously increase on penalty decision based on indemnity measures, some cases adopted maximum legal penalty, which enhanced civil liabilities for damages to the breaching parties concerning infringing intellectual property.

2.       major measures of the people’s court on enhancing judicial protection of intellectual property

the spc and courts at various levels seriously fulfilled the duties, adopted various applicable measures, enhanced judicial protection on intellectual property and overall developed the level of judicial protection on intellectual property. the measures are as following:

1). carried out special actions for protection intellectual property, established supervision system to important criminal cases concerning infringing intellectual property. in may 2005, the spc issued the notice of fully developing judicial functions and actively readjusting and standardizing market economic order, it calls courts at various levels to focus on fighting against infringing crimes concerning intellectual property, firmly and timely punish such crimes. in the meanwhile, fully develop the power of civil and commercial trials, strictly seek the civil liabilities of the breaching parties and punish the civil criminal actions concerning infringing intellectual property; if find any suspected economic crime, send the suspected clues to public security or procuratorate organs. recently, the spc issued another document: notice of the spc on enhancing the prosecution of infringing intellectual property, reasserted courts at various levels should close coordinate related department and establish supervision system for important cases concerning infringing intellectual property, shall register, track and supervise to each important case, and ensure all crimes obtained due punishment, resolutely cracked down the crimes concerning infringing intellectual property.

2). enhanced judicial explanation and continued to complete the legal system of intellectual property

according to various new conditions and questions arose in prosecution of intellectual property, the spc strengthened judicial explanation suitable to related laws concerning intellectual property, further completed the judicial system and overall upgraded the judicial protection level. in october 2005, the spc and the supreme people’s procuratorate jointly issued the reply to some questions relating copyright crimes on audio-video products, further clarified the standards of conviction and penal discretion, as well as strengthened the judicial protection. moreover, the spc drafted four judicial explanations concerning illicit competition, new plant breed infringement, intellectual property dispute, and music and television questions. these documents were put on the internet for public comments in december 2005. such activity is closed now; the spc is gathering and reorganizing the materials and will issue them after revision as soon as possible.

3) adopted legal measures according to laws to prevent the increase loss of the obligee.

people’s courts at various levels paid great attentions on the interim measures before judicial action, property preserving during judicial action and implement in advance, etc., timely prevented infringement acts and effectively protected the interests of the obligee. according to statistics, since the three laws concerning intellectual property revised, up to october 2005, local courts of the country accepted 301 injunction cases before judicial action; the concluded cases involved 299, the supporting rate reached 88.06% among cases upheld by the applicants. total accepted 470 evidence-preserving cases before judicial actions; the concluded cases involved 445, the actual supporting rate reached 95.02% among cases upheld by the applicants. total accepted 147 property-preserving cases in advance of judicial actions; the concluded cases involved 142, reaching 96.64% of supporting rate among cases upheld by the applicants.

4). seriously performed legal review functions, enhanced the supervision on administrative actions concerning intellectual property

china courts at various levels seriously performed legal rehearing functions relating patent and trademark cases and administrative law enforcement cases, protected the legal rights of administrative relevant people and further promoted administrative organs on legal performing. in 2005, national local courts accepted 575 new first instance cases relating intellectual property, an increase of 9.32% over the previous year; concluded 576 of them, an increase of 4.92%. among which, 335 were new patent cases, a decrease of 11.14%; 209 were trademark cases, an increase of 48.23%; 31 were copyright cases, an increase of 287.5%. most defendants were patent review committee and trademark evaluation committee among patent and trademark cases.

5). identified noted trademarks and enhanced judicial protection on noted trademarks

china courts at various levels enhanced the protection of noted trademarks, practically protected the legal rights of the owners of trademarks in home and abroad. according to the principle of case identifying, passive identifying and requirement of case, up to october 2005, china courts at various levels totally identified 72 noted trademarks, in which, 9 cases of noted trademarks belonged to foreigners among 42 cases between january to october 2005.

6). timely adjusted the courts on trial and rational allocated legal resources relating intellectual property

for the purpose of timely accepting judicial actions, developing the effect of prosecution cases, the spc appointed four intermediate courts in quanzhou of fujian, jinhua of zhejiang, nantong of jiangsu and zhuzhou of hunan as first instance courts involving patent disputes according to the actual conditions of each court, three intermediate courts in jiuquan, wuwei and zhangye of gansu as first instance courts involving new plant breed disputes. up to present, intermediate people’s courts engaging in patent, new plant breeds and integrated circuit diagram design reached to 52, 37 and 43 nationwide respectively. the spc also approved some local courts in big cities engaging in first instance cases of civil disputes excluded above content. up to the end of 2005, total 15 local courts authorized judicial rights on intellectual property cases. such adjustment on courts perfected the allocation of judicial protection resource on intellectual property, and will play an important role to quality and efficiency of judicial work, as well as protection the legal rights of the obligee. 

7). strengthened professional training, upgraded overall operation level

in 2005, the spc held two professional training classes relating intellectual property at state justice institute continually, total 250 justices from local courts participated, such training class or special subject class also held by many supreme courts, most national justices involved with intellectual property received a round of training, and developed their professional skills. in 2006, the spc will offer various ways to further develop the professional training among justices involved with intellectual property. a high-level forum concerning legal protection of sino-europe intellectual property will be held in xiamen on march 21 this year, the event will offer training and discussion which will benefit professional skills of justices and upgrade the judicial protection level of the country.

8). developed investigation and study, promoted the completion of the judicial protection system concerning intellectual property

to ensure the protection of intellectual property, we shall reform and perfect the legal system and work mechanism relating intellectual property. recently, related government department is planning to improve the state law enforcement system. the spc is also carrying out a special research on “perfecting judicial protection system concerning intellectual protection”. based on investigation and study, will stress on convenient judicial action of interested parties, investigation of courts, perfecting resource allocation of prosecution, simplifying relief procedures and unifying law enforcement, propose scientific measures on perfecting the structures of national judicial protection, regulate procedure system, and try best to promote implementing of research results.

9). actively adopted various applicable measures to further develop the transparency of judicial protection on intellectual property.

the spc issued the notice of preparations of use internet for publishing judgment document relating intellectual property, which calls all capable supreme people’s courts to announce the punishments to the public under their jurisdictions via internet gradually, which further developed the transparency of judicial protection on intellectual property. meanwhile, give publicity to society on legal system to increase self-knowledge of the whole society on protection of intellectual property. now, i like to take this opportunity to announce the spc’s website of intellectual property judgment is officially opened. welcome you and people in each circle to visit. last year, the spc announced 10 typical cases concerning protection of intellectual protection. we shall announce another 10 recently. we plan to use various ways to guide the public opinion, construct a well legal and social environment for protection of intellectual property. the spc also decided to grand the title of judicial court of intellectual property for the court specially engaging in intellectual property cases nationwide.

ladies and gentlemen, the china courts will fully develop the judicial protection functions of intellectual property, equally protect the legal rights of chinese-foreign owners on intellectual property, practically implement the protection obligations of china on judicial protection, overall upgrade the judicial protection level of chinese courts, promote the implementing of state strategy as a country with innovation, contribute the completion of socialist market economy with unification, open, honesty, credit and fair competition.

thank you for your patience.