2021-07-03 21:46:25 | Source：en.qstheory.cn2021-04-30
In his speech at the 25th Group Study Session of the Political Bureau of the 19th CPC Central Committee, General Secretary Xi Jinping thoroughly examined a series of theoretical and practical issues concerning our direction, principles, and underpinning for reform and development in the field of intellectual property (IP) rights. This speech provides a fundamental and practical guide for the work of strengthening IP protection in China. In the adjudication of IP cases, the people's courts at all levels in the country must follow the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, earnestly put Xi Jinping's thinking on the rule of law into practice, and keep in mind our country's overarching strategies and the requirements in the new development stage. We must use adjudicatory functions to spur greater social creativity, and provide effective services and guarantees for implementing the new development philosophy, creating a new development dynamic, and promoting high-quality development.
I. Understanding the significance of judicial IP protection
As General Secretary Xi noted, IP protection has a significant bearing on the modernization of China's system and capacity for governance, the promotion of high-quality development, the people's wellbeing, the opening up drive, and our country's national security. He has argued that to build a modern socialist country in all respects, we must strengthen IP protection in all domains to facilitate the development of a modern economic system, encourage greater social creativity, and help the creation of a new development dynamic. These important judgments spell out the significance of strengthening judicial protection of IP in the new era.
Strengthening judicial protection of IP is intrinsic to building a new development dynamic and promoting high-quality development.
As socialism with Chinese characteristics enters a new era and China begins a new journey toward becoming a modern socialist country in all respects, promoting high-quality development will be essential for maintaining sustainable and healthy economic growth. Innovation is the principal driving force behind development, while protecting IP is equivalent to protecting innovation itself.
Judges pledge allegiance to the Constitution on the Nanjing Intellectual Property Court's opening day, January 19, 2017. Between 2017 and today, 22 courts in localities including Nanjing, Wuhan, and Shenzhen have established intellectual property courts. The administration of IP-related cases has thus constantly improved, while consistent progress has been made in building a dedicated IP adjudication system. PHOTO PROVIDED BY THE INTERMEDIATE PEOPLE'S COURT OF NANJING
General Secretary Xi noted that the most important ingredient for creating a new pattern of development is a high level of self-reliance, so more emphasis must be placed on Chinese innovation. Bearing in mind the national strategy and requirements in the new development stage, the people's courts must enhance the sense of responsibility, mission, and urgency in strengthening judicial protection of IP, maintain firm commitment to the new development philosophy, and center our efforts on the theme of promoting high-quality development and the task of creating a new development dynamic. We must effectively harness the important role of intellectual property adjudication in spurring innovation and creativity, safeguarding fair competition, and promoting cultural development, and see that the judiciary lends its strength to efforts to modernize the economic system, unlock social creativity, and mold a new development dynamic.
Strengthening judicial protection of IP is essential for accelerating China's development as a science and technology leader and promoting innovation-driven development.
In the face of more intensive global competition in science and technology, the 2020 Central Economic Work Conference, held late last year, identified strengthening China's strategic science and technology capabilities as one of the eight key objectives. The conference underscored the need to give full play to the role of the state in encouraging scientific and technological innovation, and to stay oriented toward China's strategic needs when setting the direction and focus for innovation, as we strive to address major challenges upsetting our country's development and security. The Recommendations of the Communist Party of China for Formulating the 14th Five-Year Plan for Economic and Social Development also give top priority to scientific and technological innovation. The Recommendations emphasize the need to "strengthen the protection of IP and significantly boost the success of commercial applications of scientific and technological achievements." The level and quality of judicial protection that is afforded to intellectual property will directly impact the outcomes of innovation and the potential of creativity as well as the innovation-driven development strategy in terms of its implementation and the progress it produces. Maintaining the right orientation, the people's courts must take strong measures aimed at stimulating social enthusiasm for creativity and encouraging entrepreneurship and innovation, and continue improving the rule of law environment for scientific and technological innovation and providing strong legal guarantees for making China a leader in IP protection and science and technology.
Strengthening judicial protection of IP is an important measure for creating a law- based business environment and facilitating a higher level of opening up.
The best business environment is underpinned by the rule of law. General Secretary Xi has pointed out, "Strengthening intellectual property protection is the most important part of improving property rights protection, and the greatest driver for enhancing China's economic competitiveness." Strict protection of IP is necessary not only to safeguard the legitimate rights and interests of domestic and foreign enterprises, but also to promote high-quality economic development and build a new, higher-standard open economy. These tasks now constitute the main thrust of intellectual property protection work. Serving the overall interests of the nation, the people's courts should apply approaches and solutions grounded in the rule of law to achieve improvements in the business environment. We must provide equal and systematic protection for the intellectual property of market entities of all types, and punish infringements of IP in accordance with the law. We should encourage competition and prevent monopolies, promote fairer, more open, and more transparent market rules, and keep working to foster a market-oriented, law-based, and internationalized business environment. These efforts will help break new ground in China's all-around opening up.
Strengthening judicial protection of IP is necessary for China to participate in global governance in a deeper level and promote the improvement of international rules.
General Secretary Xi stated, "Based on the vision of a global community with a shared future and the principles of fairness, inclusiveness, balance, and benefits for all, China will participate fully in global IP governance under the framework of the World Intellectual Property Organization (WIPO), work to improve the international rules and standards concerning IP and related international trade and investment fields, and push development of the global IP governance system in a more just and equitable direction." Intellectual property is, at present, an area of intense international competition, and a key determinant of a country's national competitiveness. Under the WIPO framework, the people's courts will actively participate in global IP governance, and promote the development of the global IP governance system in a direction that is more just and equitable. Through these efforts, we will not only address the problems affecting Chinese innovation and development, but also help improve the global environment for IP governance, thereby helping resolve issues affecting human development and contributing Chinese insights and approaches to developing a global community with a shared future.
II. Making fresh progress in judicial IP protection in the new era
Since the 18th CPC National Congress in 2012, the Central Committee chaired by Xi Jinping has regarded IP protection with high importance, formulating a series of major plans to this end. The people's courts have worked determinedly to put the decisions and plans of the Central Committee into effect, earnestly enhanced the adjudication of IP cases, and continuously bolstered IP-related judicial reforms. These moves have given a noticeable boost to the credibility and global influence of the Chinese courts in the field of IP, and contributed to implementation of the innovation-driven development strategy and faster progress toward making China a leader in science and technology.
First, the judicial protection system has been improved in all aspects.
The Supreme People's Court (SPC) has carefully implemented the plans set forth in the Guidelines on Several Issues Concerning the Strengthening of Reform and Innovation in the Field of IP Adjudication, which were jointly issued by the general offices of the CPC Central Committee and the State Council. It has published a program for judicial IP protection, guidelines on making judicial IP protection more comprehensive, and other IP-related documents. In 2020 alone, the SPC issued ten different interpretations and policy documents on issues such as the protection of commercial secrets, patent licensing and confirmation, and evidence in civil litigation cases related to IP. Several model cases have also been publicized, such as the unfair competition case involving soft drink brands Jiaduobao and Wanglaoji. Civil judicial protections, criminal punishments, judicial reviews, and oversight of administrative conduct have been strengthened, and an IP case guidance system has been established, featuring the SPC's guiding cases, "Gazette cases," and model cases. These important actions have helped make IP trial information, intellectual property courts, and judgment documents more accessible to the public, and led to continuous improvements in the system of judicial protection for intellectual property.
Second, historic breakthroughs have been made in building a specialized adjudication system.
Placing great importance on the reform of the IP adjudication system, the CPC Central Committee made the decision to establish the Intellectual Property Court under the SPC, which primarily hears cases on appeal over patent and other intellectual property rights involving professional technologies. The Intellectual Property Court plays an important role in unifying the trial criteria for intellectual property cases and safeguarding scientific and technological innovation. Intellectual property courts in Beijing, Guangzhou, Shanghai, and the Hainan Free Trade Port have opened in succession, thereby boosting comprehensive and integrated reform of the judicial system while further promoting the professionalization of adjudicatory bodies, court personnel, and trial work. These courts have played an exemplary and leading role in IP adjudication. The establishment of intellectual property courts by local courts in 22 places, including Nanjing, Wuhan, and Shenzhen, has helped optimize the configuration of jurisdictions for intellectual property cases. As the reform to institute a "three-in-one" model for adjudicating civil, administrative, and criminal intellectual property cases nationwide makes steady headway, ongoing improvements are being made to the intellectual property adjudication system with Chinese characteristics.
Third, the general approach of serving the overall interests of the CPC and the country has produced notable results.
The people's courts have tried major cases drawing broad domestic and international attention in an impartial manner in accordance with prescribed laws, delivering positive outcomes in both legal and social terms. During the series of lawsuits involving Huawei Technologies and Conversant Wireless Licensing, the SPC Intellectual Property Court made its first anti-suit injunction ruling in the IP field, which has served as a useful experience for China in its explorations on instituting an anti-suit injunction system. This ruling helped accelerate settlement negotiations between the parties, which concluded with a settlement between the two sides on a global basis. As part of the efforts to strengthen IP protection relating to core technology bottlenecks in key fields, the people's courts appropriately adjudicated disputes concerning patents, integrated circuits, and computer software, providing guidance for enterprises in their efforts to develop breakthroughs in core technologies, which has promoted both technological and industrial upgrading. Through act preservation orders, evidence preservation orders, and other methods, evidence of rights infringements was secured, while active explorations were made on pre-litigation injunctions to effectively protect the rights and interests of technology companies. The SPC provided guidance to local courts in their explorations on centralized jurisdictions over IP cases across regions. Such efforts have played an important role in promoting the coordinated development of the Beijing-Tianjin-Hebei region, the integrated development of the Yangtze River Delta, and the development of the Guangdong-Hong Kong-Macao Greater Bay Area and the Hainan Free Trade Port. The SPC also guided the high people's courts and administrative IP departments in the Yangtze River Delta region (Shanghai, Jiangsu, Zhejiang, and Anhui) in signing a memorandum to promote integrated judicial and administrative protection of IP, with a view to better serving innovation-driven development in the region.
Fourth, China's global reputation for judicial protection of IP has grown.
The SPC Intellectual Property Court heard a major trademark case involving Qiaodan Sports and Michael Jordan and a lawsuit filed by Christian Dior Perfumes LLC against the Trademark Review and Adjudication Board (TRAB). With Chinese and foreign rights holders receiving proper protection in China, more foreign enterprises are choosing to settle their IP disputes here. The efficiency of adjudication in IP cases has increased steadily, and more IP cases, especially patent cases, are tried in China than in any other country, which has one of the shortest adjudication periods in the world. The SPC and WIPO have signed a memorandum of understanding on judicial exchanges and cooperation, jointly published a collection of leading judgments on IP, and hosted high-level seminars on IP adjudication. The People's Court of Pudong New Area and WIPO have also partnered to establish the WIPO Shanghai Center for Arbitration and Mediation, which is the first arbitration institution to mediate foreign-related IP disputes on Chinese soil. Through these efforts, China has become more influential in judicial IP protection, and its influence as a major country for law-based intellectual property protection has grown.
III. Opening a new phase in the cause of judicial IP protection
At present, momentous changes of a kind not seen in a century are unfolding in the world at an accelerated pace, and China is starting out on a new journey toward becoming a modern socialist country. These changes will create new opportunities and challenges in IP-related judicial work. Keeping in mind China's domestic and international imperatives, the people's courts will fully grasp the new requirements for intellectual property adjudication arising from the main economic and social development goals during the 14th Five-Year Plan period and the long-range objectives through the year 2035, and work to implement the new development philosophy, promote high-quality development, and create a new development dynamic. We will remain focused on our own priorities, continue putting the people's interests first, and ensure impartial and appropriate protection, so as to not only strictly protect intellectual property rights but also guarantee public interests and incentives for innovation. We will take yet further steps toward strengthening judicial protection of IP rights to create a favorable legal environment for implementing the innovation-driven development strategy and turning China into a leader in science and technology.
First, we will pursue a distinctly Chinese path in the development of intellectual property.
The leadership of the Communist Party of China has been the source of strength driving both the continuous reform and innovation of intellectual property adjudication and the historic transformation that has swept this field. The CPC is the fundamental guarantee for the continuous development of intellectual property adjudication along the right course. We will firmly adhere to the CPC's absolute leadership over judicial work, continuously improve our capacity for political judgment, thinking, and implementation, and unswervingly follow the path of socialist rule of law with Chinese characteristics. We must accurately understand the requirements for grounding our work in this new stage of development, implementing the new development philosophy, and creating a new pattern of development, perform our duties as required by law, and actively serve the overall interests of our Party and the country. We will carry out intensive analysis and research with a view to proactively meeting the demands placed on the judiciary in creating a new development dynamic and striving to provide higher-quality and more targeted judicial services.
Second, we will give full play to the role of our adjudicatory functions.
In his speech, Xi Jinping set out plans for improving the quality, efficiency, and public credibility of the courts when it comes to IP trials. Keeping in mind the overall situation in relation to IP, the people's courts will provide greater judicial IP protection for critical technologies in key fields, emerging industries, major sectors, as well as for germplasm resources, promoting greater self-dependence and self-improvement in the technology sector. We will strengthen our efforts to combat monopolistic practices and unfair competition, and promote the creation of a unified national market featuring fair competition and well-regulated, orderly operations. The process of formulating judicial interpretations for punitive damages in intellectual property infringement cases will be accelerated to see that punitive damages are put in place for IP cases and have the desired result. We will explore special procedures for IP litigation, and set litigation standards that are well-adapted to intellectual property trials. Maintaining stringency and impartiality, we will provide equal protection to the legitimate rights and interests of Chinese and foreign IP holders in accordance with the law, enhance the influence and credibility of the Chinese courts in the field of IP, effectively convey China's efforts in judicial IP to the world, and actively participate in global governance in the field of intellectual property under the WIPO framework.
The Supreme People's Court conducts an open hearing of a case involving an administrative dispute over a 3D trademark claim from the Dior fashion company on World Intellectual Property Day in 2018. The court issued a decision the same day, which imposed greater demands on the legitimacy of administrative procedures. This reflected the court's determination to provide rapid relief and comprehensive protection of intellectual property rights, and demonstrated that China is committed to protecting litigants' legitimate rights and interests on an equal basis. PHOTO PROVIDED BY THE SUPREME PEOPLE'S COURT
Third, we will pursue more profound reform and innovation of intellectual property trials.
Xi Jinping has pointed out the need to further reform and innovation in the field of intellectual property adjudication, with a view to improving the intellectual property litigation system. Adhering to a problem-oriented approach, the people's courts will strengthen the judicial protection systems and mechanisms for intellectual property, study ways to improve the setup of special courts, and further improve the jurisdictional layout for intellectual property cases, so as to realize specialized adjudication of intellectual property cases under centralized jurisdictions, through intensified procedures, and by professional personnel. We will continue to give play to the exemplary and leading role of specialized courts and tribunals in improving the specialist trial system for intellectual property rights. We will actively promote the "three-in-one" model for adjudicating civil, administrative, and criminal intellectual property cases nationwide, so as to optimize the allocation of trial resources and improve overall judicial protection for intellectual property. We will improve the technical fact-finding mechanism, which involves the participation of technical investigation officers, technical advisory experts, technical expert witnesses, and ancillary judicial personnel, and enhance the diversified dispute resolution mechanism. Mechanisms for coordination will be improved to promote stronger cohesion in intellectual property protection. We will advance the development of smart courts in a comprehensive manner, giving prominence to the role of judicial data platforms and intelligent systems in smart courts, and promote the realization of data sharing and intensive applications of big data in intellectual property cases.
Fourth, we will strengthen our intellectual property adjudication team.
A great undertaking requires capable people if it is to truly flourish. In the final analysis, to develop the cause of judicial IP protection, we need to make China's intellectual property adjudication teams more revolutionary, standardized, specialized, and professional. Adjudication teams should improve their political integrity, competence, and level of professionalism, and ensure they maintain firm political commitment, keep in mind the big picture, and demonstrate a good knowledge of the law, a strong understanding of technology, and an international outlook. Further steps will be taken to reinforce political foundations. Regarding political competence as the most important quality, we will strengthen our awareness of the need to serve the overall interest, maintain the courage and ability to work hard, and proactively fulfill the task of safeguarding China's national sovereignty, security, and development interests. To strengthen our competencies in seven areas (politics, research, decision-making, reform, responding to emergencies, engaging with the people, and policy implementation), we will continue innovating our professional training mechanisms, focus on building our reserves of human resources for intellectual property adjudication, and improve selection, training, and exchange programs for outstanding personnel, so as to ensure that the long-term development of intellectual property adjudication is underpinned by a strong foundation of human capital. We will strengthen our efforts to improve Party conduct, build a clean government, and combat corruption, improve the mechanisms for exercising, supervising, and checking judicial power in the field of intellectual property rights, and enforce firm rules and strict prohibitions, such as the regulations on preventing interference in the judicial system and ensuring China's judicial team is loyal and corruption-free spelt out in the following three documents: the Regulations on the Recording, Notification, and Accountability Investigation of Leading Officials for Interventions in Judicial Activities and Handling of Specific Cases; Regulations on the Recording and Accountability Investigation of Staff Members of Judicial Organs for Their Intervention in Case Handling; and Regulations on Setting Further Standards for Contact and Association between Judicial Officials and the Parties Concerned, Lawyers, Special Interested Parties, and Intermediary Organizations.
Source: English Edition of Qiushi Journal,2021,No.2
(Originally appeared in Qiushi Journal, Chinese edition, No. 3, 2021)