April 2023
Karl Zhang and Teresa Huang
On February 17, 2023, the China National Intellectual Property Administration (hereinafter referred to as the “CNIPA”) issued the Measures for Online Oral Hearing of Administrative Adjudication Cases of the CNIPA (hereinafter referred to as the “Measures”), which came into force on the date of promulgation. The main contents of the Measures are as follows:
1. Effectiveness of online oral hearing
The online oral hearing referred to in the Measures means that the CNIPA completes the oral hearing procedures of administrative adjudication cases through the Internet during the administrative adjudication. The online oral hearing of a case has the same legal effect as the offline oral hearing.
2. Scope of application of online oral hearing
Cases to which online oral hearing may apply include: (1) administrative adjudication cases on major patent infringement disputes; (2) administrative adjudication cases on early resolution mechanism of drug patent disputes; (3) administrative adjudication cases on disputes over the exclusive right to integrated circuit layout designs; and (4) other administrative adjudication cases for which online oral hearing may be appropriate.
In any of the following circumstances, online oral hearing shall not apply: (1) any party has justifiable reasons for not being able to participate in online oral hearing or does not have the technical conditions and ability to participate in online oral hearing, and has submitted a written application to and has been approved by the CNIPA; (2) the case is difficult and complicated and the evidence is numerous, thus the use of online hearing is not conducive to ascertaining the facts and applying the law; (3) the case involves national security, state secrets or trade secrets; or (4) the CNIPA considers that there is any other circumstance not suitable for applying online oral hearing. The party who meets the conditions mentioned in the aforementioned Item (1) shall participate in the offline oral hearing, and other parties may continue to participate in the online oral hearing.
If any circumstance under which online oral hearing is not applicable is found in the online oral hearing process of a case, such case shall be promptly transferred to offline oral hearing, and the part of online oral hearing already completed have the legal effect.
3. Procedural requirements related to online oral hearing
In an online oral hearing, the parties shall, at least five working days before the oral hearing, be informed of the specific time, procedures, rights and obligations, legal consequences and operation method of the online oral hearing. For an online oral hearing that the parties have been informed, if any party fails to participate without justifiable reasons or quits in midway without objective reasons and permission, such party shall be treated as withdrawing the request if it is the requesting party, or treated as absent if it is the requested party.
In the online oral hearing of a case, the parties’ rights to apply for recusal, submit evidence, cross-examine, make statements and debate shall be protected in accordance with the law. In an online oral hearing, online evidence exchange may be carried out to complete the evidence submission, cross-examination and other procedures through synchronous or non-synchronous way. If any offline verification of originals or inspection of physicals is needed, the offline verification or inspection may be arranged.
Relevant subjects participating in an online oral hearing shall comply with the relevant laws and regulations on data security and personal information protection to fulfill the data security and personal information protection obligations. Without the consent of the CNIPA, no one may illegally record, intercept or disseminate any audio, video or graphic materials related to an online oral hearing process. Except for those disclosed by the CNIPA in accordance with the law, no one may disclose, disseminate or use any data information of an online oral hearing in violation of the law.
4. Local patent administration authorities’ application by analogy of the Measures for the administrative adjudication of patent infringement disputes
If any local patent administration authority takes online oral hearing in dealing with an administrative adjudication case concerning patent infringement dispute, it may apply by analogy the Measures.
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