Opinions of the Supreme People’s Court on the Comprehensive Strengthening of Judicial Protection of Intellectual Property Rights (Mainland China)

Di Wu

Strengthening the protection of intellectual property rights is the most important element of improving the property rights protection system and is also the greatest driver to enhance the competitiveness of our economy.  The Supreme People’s Court thus issued the subject Opinions for a comprehensive strengthening of the judicial protections for intellectual property rights, compliance with international rules and fulfil international commitments, as well as its thoughts on how the people’s courts shall protect intellectual property rights.

1. Effective protection of the rights and interests of rights holders based on the characteristics of the various types of cases

(1) Strengthen the protection of the fruits of technological innovations.  To improve the quality of patent licensing, administrative interpretations will be issued on patent licensing and confirmation of rights as well as rules on patent examination.  In addition, the trial of intellectual property cases involving patents, new plant species, integrated circuit layout design, computer software and other intellectual property cases should be strengthened; more research on strengthening protections for pharmaceutical patents so as to stimulate innovation and promote the healthy development of the pharmaceutical industry.

(2) Strengthen the protection of the rights and interests concerning commercial labels.  In cases involving trademark infringement, trademark licensing and confirmation, as well as trademark squatting, there shall be an overall consideration of the similarity with trademarks and goods, the distinctiveness and popularity of the trademarks for which protection is sought among other factors, so as to strengthen protection of well-known marks and geographic indications.

(3) Strengthen the protection of copyright and related rights.  It is necessary to properly handle the relationship between the development of information network technologies and the protection of copyright and related rights; take into account the interests of the authors, broadcasters, commercial operators and the public; coordinate the relationship among stimulating creativity, promoting industry development and safeguarding basic cultural rights and interests; and promote cultural innovation and business development.  New types of cases such as sports events and e-sports broadcasting disputes should be properly handled in accordance with law in order to promote the regulated development of emerging industries.

(4) Strengthen trade secret protection.  The rules for the burden of proof should be reasonably applied in civil litigation to reduce the burden of rights holders in protecting their rights.  In addition, it is necessary to improve the criteria for determining criminal trade secret misappropriation as well as stipulate the scope and method for determining significant losses to mitigate commercial damage or determine the reasonable amount of remedial costs from new security safeguards.  This can serve as the basis for determining “significant losses” or “particularly serious consequences” in criminal cases.

(5) Improve the rules for determining infringement by e-commerce platforms.  It is necessary to improve the governance rules of e-commerce platforms on notification and deletion, among others, and keep an open channel for rights holders to defend their rights online.  Online intellectual property infringement and unfair competition disputes such as bad faith complaints shall be properly adjudicated.

(6) Equally protect the rights of Chinese and foreign entities.  Intellectual property rights disputes involving foreign parties in the course of international trade or foreign investment shall be properly handled, equal protection adhered to, streamline the notarization and certification procedures, and further improve the fair and efficient dispute resolution mechanisms and enhance the international influence and credibility of intellectual property justice.

2. Focusing on resolving outstanding issues and enhancing the practical effects of judicial protection

(1) Effectively reduce the cost to protect intellectual property rights.  Judicial interpretations on evidence in civil litigation over civil intellectual property rights actions shall be issued, improve the rules on the allocation of the burden of proof, the system for removing obstructions to submission of supporting evidence, as well as on witness testimony in court, and broaden the channels for collection of electronic evidence.

(2) Significantly reduce the time needed in intellectual property rights litigation.  The reformation of adjudicating intellectual property rights actions shall increase in depth to provide seamless connection between civil patent and trademark matters and administrative procedures, thereby avoiding repeated litigation.  Strict monitor the standards for entrusted forensic evaluation, suspension of litigation or remanding a lawsuit, etc., to reduce unnecessary waste of time; and uphold pursuant to law preservation applications for intellectual property rights to create favorable conditions for the timely enforcement of court decisions.

(3) Effectively increase the amount of damages for infringement.  To the determination of profits from infringement shall be determined through full use of relevant data from industrial and commercial tax authorities, third-party commercial platforms, the infringers’ websites or listing documents, as well as industry average profit margins, etc.  The amount of statutory compensation shall be reasonably stipulated by considering the market value of intellectual property rights, the subjective culpability of the infringer, the duration of the infringement, the scope of impact, the severity of the consequences and other factors.

(4) Stop bad-faith lawsuits.  In cases of damages claims for bad faith intellectual property lawsuits, they shall be properly adjudicated, and such damages claims, including attorneys’ fees, shall be supported pursuant to law.  The rules and guidelines for intellectual property jurisdiction disputes shall be strengthened, with jurisdiction boundaries established to prevent bad faith delay tactics based on jurisdictional disputes.  It is also necessary to explore the feasibility of reporting litigants who engage in bad faith conduct such as violating court orders, falsifying evidence and filing bad faith lawsuits in the national credit reporting system.

(5) Effectively enforce judicial decisions regarding intellectual property rights.  There needs to be a comprehensive optimization of the rules on jurisdiction in enforcement in intellectual property cases based on the particular characteristics of the matter.  Research shall be conducted to improve preservation and injunction enforcement.  An implementation plan and work guidelines shall be formulated with respect to the enforcement of intellectual property rights decisions with full use of monitoring of information networks, and disciplinary actions through both loss of credit and credit penalties.