chief judge of the ip tribunal of the supreme court jiang zhipei made a speech at the ip conference in london through phone in beijing

judge jiang said:

hullo, can you hear me and i am in beijing. it is at 11 pm and i guess it is afternoon in london. ok.

thank you chairman thanks the ip institute in uk for giving me a chance to share experiences for protection intellectual property with the conference.

good afternoon, ladies and gentlemen,

i am very pleased to say some words for the conference through the phone line in beijing. it is a very beautiful city london and i visited it 13 years ago during the term i did the reach in the university of birmingham faculty of law. it was very impressive for me.

i would like to mention some situation about ip protection and ip tribunal in china.

china is a very old ancient country and has a long traditional cultural history. however she is also a new comer of the modern market world. so china could learn new things from all other countries including united kingdom, united states and other countries in eu.

therefore china courts are willing to protect intellectual property with sharing new experiences whatever any countries. china set up a special tribunal that is different from the ip court in other countries and some similar with other countries.

nowadays china judges are facing big challenges of ip cases field amount increasing and so many new ip law applied and much more technical issues in the handling ip cases after entry into wto.

for dealing with infringing cases, china’s courts provide a number of different kinds of judicial protection through the civil, criminal and administrative procedures. china pays much more attention to the enforcement of ipr law today.

for example, in 2005 total concluded 3529 criminal cases concerning infringing ip including counterfeiting maters nationwide, and punished 5336 criminals, 2963 people were punished with fixed-term imprisonment; including 505 cases and 741 people of effective judgments by infringing criminal imputation of the criminal law.

in 2005 the courts accepted total 16583 civil ip cases, concluded 16453 of them. only around 5% ip cases concerning foreign companies and more 90% of them won the cases.

the first half of the year 2006, ip judges accepted 6282 civil ip cases and concluded 4539 cases.

for the challenge of the complicated judicial difficult issues of ip and the technical issues in the cases especially, china began to set up special tribunals in the court system in beijing and shanghai and other big cities etc. in 1993.

chinese court system consists of four tiers of courts. the supreme court is the highest judiciary of the country. its ip tribunal was founded on october 1996, nearly 10 years. my tribunal has 8 judges including 4 judges and 4 assistant judges.

the ip tribunals conducted the following ways to finish their jobs:

firstly, the jurisdiction over ip infringements is generally limited to the intermediate courts total 404 courts and only appointed 58 intermediate courts holding such a jurisdiction over patent cases. the 404 courts handle copyright and trademark cases.

secondly, the ip tribunals deal with the areas of ipr covers all kinds of intellectual property cases.

thirdly, the supreme court has been much concerned with professional development and providing adequate ip protection. china also provides special training for ip judges to make them more familiar with trips and other ip conventions and newly amended ip laws in china. the national judges college and all regional judge’s colleges around china are in charge of giving judges better education in law practice.

fourthly, the ipr holders may apply for the court to take pre-trial provisional measures, including evidence preservation. this can occur before the institution of an action, or filing the case or in the course of proceedings. when applying for a preliminary injunction and a pre-trial preservation of property, the ipr holders or other interested parties needs to show, that other parties have carried out or will carry out acts, which infringe their ipr and will cause irreparable harm. likelihood of infringement is a precondition and should be considered firstly. nowadays, the courts more actively grant injunctions to on-going infringements.

ipr holders may apply to the court for evidence preservation before initiating legal proceedings （in patent/ trademark/ and copyright / layout-designs of integrated circuits cases）: if they have evidence or giving reasonable explanation to show the evidence controlled by the accused is impossible to be collected but it is crucial for the case, and may be destroyed, or evidence will possibly be destroyed or lost or difficult to be obtained again in the future, court will take into account the difficulties for parties to collect evidence, courts should be more actively to give the order and implement it immediately. that is so called the pre-trial preservation of evidence.

the court may order the applicant to provide a guarantee for an application for pre-trial preservation of evidence. any applicant shall provide guarantee when filing an application for pre-trial injunction. the court may order the applicant to provide supplementary guarantee. the party against whom an application is filed may provide a counter guarantee, but any measure taken to execute the ruling of pre-trial injunction shall not necessarily be removed. sum of guarantee should be reasonable and in the limit of recovering losses of respondent and paying expenses for implementation of the injunction. sum of guarantee for pre-trial preservation of evidence should be limited to the value of the seized goods and paying expenses for implementation of the order. credit guarantee provided by companies of good reputation can be recognized.

for all application of those provisional measures, a court have to make the decision within 48 hours after the application and the measures should be taken without delay if they are considered necessary. where the applicant fails to institute legal proceedings within 15 days after the court adopted the measures of preservation, the court should terminate such measures. where the interested party is not satisfied with the ruling, he may apply for reconsideration within l0 days from the date of the receipt of the ruling. however, the execution of the ruling shall not be suspended during the reconsideration.

when court consider the application, evaluate the public interests will take into account, the court should not only consider whether it would harm to public interests if granting the injunction, but whether it would simultaneously harm to public interests when causing losses of the claimant if refusing the injunction.

fifthly, monetary losses could be a serious harm to right holder, but the court also pays more attention to the fussiness reputation of the ip owners. according to the civil law in china, the basic principle of compensation for damages in civil cases is compensatory damages rather than punitive damages. in the cases of ip infringement, the principle is full compensation to ip damages. based on the ip law including those relevant judicial interpretations, there are four methods of calculating compensation for ip infringement. the loss of the obligee (generally ip owner) can be calculated by multiplying the reduced sales volume of patented products by the profit per patented product. if the reduced sales volume is hard to be determined, then the sales volume of infringing products may be considered as the reduced sales volume of patented products. the gains of the infringer can be determined by multiplying sales volume of infringing products by the profit per infringing product (profit of infringing product generally means operating profit). for infringers who make their whole living on infringement, quantum of damages can be calculated according to sales profit.

at present, only a judicial interpretation promulgates that when determining quantum of damages with reference to patent license royalty, the court should determine the damages within the range of 1-3 times of the patent license royalty.

when quantum of damages cannot be determined by all three methods mentioned above, the court might generally determine quantum of damages no more than rmb 300,000 (rough equals to $ 38,000). for cases of severe consequence or serious circumstances, quantum of damages can be above rmb 300,000 but no more than rmb 500,000 (rough equals to $ 63,000). bear in your mind, the statutory damages, can be directly claimed, but should adduce evidence or give reasonable explanation.

the necessity of expenses and proportion of upheld claims should be taken into account, attorney’s fees should also be appropriate expenses which have been actually paid and with official receipts.

by the experiences of chinese judges, sitting up the special ip tribunals and collecting a group of high quality ip judges should be a good way to deal with ip cases efficiently. the ip judges could be easy to be training and they are skillful and easy to sum up and analyze their experiences. they have more judicial power and could be care more ip issues but also judicial issues.

recently, several local courts in guangdong province in china begin to concentrate criminal, civil and administrative ip cases into one ip tribunal to handle. furthermore the courts system is suggested that should set up an ip special appeal court in the capital beijing handling appealing and review all kinds of ip cases in the whole country although it is only the suggestion of the experts.

in conclusion, the judicial mechanism of protection for ipr has been working well in china today. in coming 5 to 10 years, the situation of ip protection must be improved step by step and firmly. the power of inside and outside china will encourage to that strongly.

all right i sent a more detail article to the conference. and if you would like get more information in the future you could visit the website: www.chinaiprlaw.cn .  you could find more then near 5000 ip cases judgments in china on the website linking. the website set up in 1999.  the visitors would find out my email address therefore i often have to reply some email of questions for ip both inside china and overseas.

thank you for your attention.   

( judge jiang also answered some questions of the participants of the conference.)