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Provisions of The Supreme People's Court on Several Issues concerning Intellectual Property Court of Appeals
Approved at the 1756th conference of the Judicial Committee of The Supreme People's Court (hereinafter referred as SPC) on December 3, 2018, “Provisions of The Supreme People's Court on Several Issues concerning Intellectual Property Court of Appeals” is hereby announced to take effect as of January 1, 2019.
The Supreme People's Court December 27, 2018 Judicial Interpretation No. 22 (2018)
Provisions of The Supreme People's Court on Several Issues concerning Intellectual Property Court of Appeals
(Approved at the 1756th conference of the Judicial Committee of The Supreme People's Court (hereinafter referred as SPC) on December 3, 2018, and to be enacted as of January 1, 2019)
To further unify the criterion for IP-related cases, equally protect the legitimate rights and interests of various market entity in accordance with the law, to strengthen protection of Intellectual property rights by law, to optimize the legal environment of scientific and technological innovation, and to facilitate the implementation of the strategy of innovation-driven development, pursuant to the Organization Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China, the Administrative Procedure Law of the People's Republic of China, the Decisions of the Standing Committee of the National People’s Congress on Several Issues in the Proceedings of Patent and Other Intellectual Property Cases, and with reference to trial practices, several issues concerning the establishment of the Intellectual Property Court of Appeals within the Supreme People’s Court are hereby prescribed.
Article 1
The Supreme People’s Court establishes the Intellectual Property Court of Appeals to hear appeals relating to patent and other intellectual property rights of significant technical issues.
The Intellectual Property Court of Appeals is a standing body designated by the Supreme People’s Court and is based in Beijing.
Judgments, adjudications, mediations, and decisions made by the Intellectual Property Court of Appeals shall be deemed as judgments, adjudications, mediation, and decisions of the Supreme People’s Court.
Article 2
The Intellectual Property Court of Appeals hears a case in the following circumstances:
a. where the interested parties are not satisfied with the first-instance administrative judgment or the adjudication of the Higher People’s Court, the Intellectual Property Court, and the Intermediate People's Court on a patent for invention, a patent for utility model, a new plant variety, a layout design of integrated circuits, technical know-how, computer software, and monopoly and proceed with an appeal;
b. where the interested parties are not satisfied with the first-instance administrative judgment or adjudication of Beijing Intellectual Property Court on the granting and affirming rights of a patent for invention, a patent for utility model, a new plant variety, a layout design of integrated circuits, technical know-how, computer software and proceed with an appeal;
c. where the interested parties are not satisfied with the first-instance administrative judgment or adjudication of the Higher People’s Court, the Intellectual Property Court, and the Intermediate People's Court on a patent for invention, a patent for utility model, a new plant variety, a layout design of integrated circuits, technical know-how, computer software, and the penalty for monopoly and proceed with an appeal;
d. nationwide significant and complicated first-instance civil and administrative cases identified in the foregoing items a, b, and c;
e. petition for retrial, protest, and retrial, etc. where adjudication supervision procedure is applicable with regard to legally effective judgment, adjudication, or mediation of first-instance cases identified in the foregoing items a, b, and c;
f. where the interested parties have disputes over the jurisdiction, petition for reconsideration of the decision of detention, or apply for extension of trial term, etc. with regard to first-instance cases identified in the foregoing items a, b, and c;
g. other cases considered by the Supreme People’s Court ought to be heard by the Intellectual Property Court of Appeals.
Article 3
The trial court of the first-instance cases identified in items a, b and c of Article 2 herein transfer the paper and electronic files to the Intellectual Property Court of Appeals in a timely manner in accordance with relevant articles and regulations.
Article 4
With consent of the interested parties, the Intellectual Property Court of Appeals may deliver case files, evidence materials, and judicial documents, etc. via electronic means such as the Litigation E-platform, the China Judicial Process Information Online, fax, e-mail, etc.
Article 5
The Intellectual Property Court of Appeals may organize evidence exchange, call for pretrial conference, and so on via the Litigation E-platform, online video conference, etc.
Article 6
The Intellectual Property Court of Appeals may, based on the actual situation of a case, conduct circuit trial on site or at the location of the court of the first trial.
Article 7
Where the Intellectual Property Court of Appeals takes measures of, for example, preservation, relevant articles and regulations on the corresponding procedure shall be complied.
Article 8
Information of case acceptance, members of the collegiate bench, the trial procedure, the judicial document, etc. of a case heard by the Intellectual Property Court of Appeals shall be disclosed to the interested parties and the public according to law, and shall be accessible through the Litigation E-platform and the China Judicial Process Information Online.
Article 9
Meeting of Judges of the Intellectual Property Court of Appeals shall be consisted of a chief judge, a vice chief judge, and several senior judges to discuss significant, difficult, and complex cases.
Article 10
The Intellectual Property Court of Appeals shall deepen the research and study relating to trials, conclude criterion and rules of making judgments, and guide the work of the people’s court on a lower level.
Article 11
Where a protest is filed by a provincial people’s Procuratorate before a Higher People’s Court with regard to a judgment, an adjudication, or a mediation of a first-instance case identified in the foregoing items a, b, and c of Article 2 herein, the Higher People’s court shall make known that such protest shall be filed by the Supreme People’s Procuratorate with the Supreme People’s Court, and shall be heard by the Intellectual Property Court of Appeals.
Article 12
Where an interested party files an appeal or petition for reconsideration according to law with regard to a judgment, adjudication, or decision made before January 1, 2019 on a first-instance case identified by items a, b, and c of Article 2 herein, such appeal or petition shall be heard by the people's court at the next higher level of the first-instance court.
Article 13
For petition for retrial, protest, and retrial with regard to legally effective judgment, adjudication, or mediation made before January 1, 2019 on first-instance cases identified in items a, b, and c of Article 2 herein, the Civil Procedure Law of the People's Republic Of China and the Administrative Procedure Law of The People's Republic of China shall be applicable.
Article 14
Basic people’s courts to accept first-instance civil and administrative litigation involving patent, technical know-how, computer software, and monopoly under permission no longer accept the above identified cases.
Where an interested party is not satisfied with the judgment or adjudication of a case identified in the foregoing item which is not closed by the basic people’s court till January 1, 2019 and files an appeal in accordance with law, such appeal shall be heard by a people's court at the next higher level.
Article 15
This Provision shall take effect on January 1, 2019. since January 1st, 2019. This Provision shall prevail in case of discrepancy between a judicial interpretation issued earlier by the Supreme People’s Court and this Provision.
Source: The Supreme People’s Court
Date: December 28, 2018
