The China National Intellectual Property Administration (CNIPA) recently issued the Notice on Performing Norm Setting Work for Administrative Adjudication of Patent Infringement Disputes (the "Notice"), to promote the Norm Setting Work for Administrative Adjudication of Patent Infringement Disputes in the place where conditions permit. The issuance of the Notice is an important measure to implement the decisions and arrangements of the CPC Central Committee and the State Council on strengthening IP protection in order to make full play of the crucial role of administrative adjudication in resolving patent infringement disputes, ensure social harmony and stability, and advocate the building of a law-based government, and constantly optimize the business environment.
Interpretation of the Notice
Background
The CPC Central Committee and the State Council have attached great importance to administrative adjudication, taking administrative adjudication as an important link in promoting the multi-pronged mechanism of dispute settlement and a pivotal step in promoting social harmony and stability. The fourth plenary session of the 18th CPC National Congress proposed to "refine the mechanism for precaution and settlement of social conflicts and disputes, promote the organically linked and coordinated multi-pronged mechanism of dispute settlement inclusive of mediation, arbitration, administrative adjudication, administrative review and litigation", "refine the administrative adjudication system and strengthen administrative authorities' functions in settling civil disputes closely connected with the pertinent administrative activities". The Implementing Outline of Building a Law-based Government (2015-2020) required that, "Pertinent administrative authorities shall conduct administrative mediation and administrative adjudication according to law, to settle conflicts and disputes timely and effectively." The Opinions on Improving the Multi-pronged Mechanism of Conflict and Dispute Settlement, issued by the General Office of the CPC Central Committee and the General Office of the State Council, required to "refine the administrative adjudication system, clarify the application scope, procedures and remedies of administrative adjudication, strengthen administrative authorities' functions in settling civil disputes closely connected with the pertinent administrative activities". These arrangements and requirements have provided important guidance for refining the administrative adjudication system and strengthened the administrative adjudication work.
In December 2018, the General Office of the CPC Central Committee and the General Office of the State Council issued the Opinions on Refining the Administrative Adjudication System and Enhancing Administrative Adjudication (the "Opinions"), stating that administrative adjudication is the act of administrative organs to settle medially civil disputes closely related to administrative activities based on application of the parties and authorized by laws and regulations, and requiring "focus on the work of administrative adjudication in natural resources ownership disputes, intellectual property infringement disputes and compensation disputes, and disputes over government procurement activities, so as to better serve economic and social development". In July 2019, the Ministry of Justice sent a letter to the CNIPA reiterating its support for carrying out the pilot work on administrative adjudication in IP infringement and compensation disputes. On the basis of systematically sorting out the existing working practices and drawing on the beneficial practices of other systems, the CNIPA took the lead in the field of administrative adjudication of patent infringement disputes and issued the Notice.
Working Path
The Notice requires that IP administrations of provinces (autonomous regions, municipalities) may apply for pilot projects according to the actual situation, actively seek the strong support from local government and relevant departments, conduct in-depth research, stand on reality, and advocate administrative adjudication of patent infringement disputes based on strengthening IP administrative protection. Based on the application documents, the CNIPA will select a group of localities with good work foundation and high motivation as pilot regions for norm setting, intensify guidance and support, and facilitate these pilot regions' breakout, with a view to quickly gathering a number of reproducible, marketable and adoptable experiences.
The pilot program for norm setting will last two years from January 2020 to December 2021. The CNIPA will check the results at the end of the program and expand the implementation of the administrative adjudication of IP infringement disputes to other sectors and regions based on the gathered experiences from these pilot regions.
Summary of Content
The Notice has set out tasks on the purpose, contents, application for pilot work and working requirements of administrative adjudication of patent infringement disputes. The work content part mainly includes the following six aspects.
First, to consolidate the institutional infrastructure, actively introduce policy documents related to administrative adjudication of patent infringement disputes, and refine and improve procedural norms and substantive standards for administrative adjudication of patent infringement disputes. Where laws and regulations stipulate administrative adjudication duties, the relevant departments and governments may refer to provisions of the Civil Procedure Law, Administrative Procedure Law and relevant judicial interpretation, introduce relevant normative documents, gradually improve the administrative adjudication procedures in line with the relevant areas and regions, and regulate the expressions in the relevant administrative adjudication.
Second, to smooth the channels of dispute acceptance, encourage and guide the rights owners to resolve disputes through administrative adjudication, promote the relevant departments to establish and implement the system of informing administrative adjudication, and intensify the guidance on and promotion of administrative adjudication. For disputes that can be resolved through administrative adjudication, the people's courts, people's mediation committees and professional mediation organizations should be promoted to establish and implement the system of informing administrative adjudication, and lawyers and grassroots legal service providers should be guided to actively communicate the channels of administrative adjudication. Intensify the promotion of and guidance on administrative adjudication, focusing on the use of government websites, WeChat, Weibo and other new media and new technologies, vigorously publicize the advantages, effectiveness and typical cases of administrative adjudication, and guide the people to resolve disputes through administrative adjudication.
Third, to carry out innovate way of work, simplify and improve the procedures for handling cases such as filing and serving, and establish and improve the working mechanism of written review, in-court ruling, technical investigation, joint oral examination, etc. Follow the principles of equality, standardization, convenience and efficiency, optimize the application, acceptance, recusal, evidence, mediation, trial, execution and service of administrative adjudication, explore the establishment of a written review system for specific type of cases, promote the participation of professional and technical personnel as technical investigators in the handling of cases, assist in identifying technical facts and explore innovative mechanisms such as joint oral examination of patent infringement and invalidation, and further enhance the efficiency and convenience of administrative adjudication.
Fourth, to perform the linking-up and coordination, improve the working models of mediation in advance, judicial confirmation, undisputed facts recording and the like, and refine the coordination and linking-up of administrative adjudication with other dispute resolution mechanisms. As to the linking-up with administrative mediation, the mediation can be adopted for patent infringement disputes before administrative adjudication, fully using administrative guidance and other means, through factual findings, professional appraisal or legal opinion, to promote the parties to negotiate to resolve disputes; as to the linking-up with judiciary, if mediation agreements can be reached, the mediation agreements should be made timely, and the parties are guided to apply for judicial confirmation in accordance with the law. For cases yet to settle after mediation, by establishing a mechanism of recording undisputed facts, the parties are not required to prove again in the administrative adjudication procedures those undisputed facts already confirmed during mediation. Through coordination and linking with other dispute settlement mechanisms, the effectiveness and efficiency of administrative adjudication will be further promoted.
Fifth, to refine the work system, clarify the administrative adjudication agencies and personnel, improve the work procedures of case supervision, referral and transfer and the like, and establish a hierarchical guidance mechanism for handling cases. IP administrations at all levels shall specify special offices or personnel to undertake administrative adjudication of patent infringement disputes, and shall be able to meet local work needs and social demands. Authorities at all levels shall enhance oversight, check and guidance over administrative adjudication. Official acts of negligence and dereliction of duty shall be criticized. The acts that have violated the laws or disciplines should be punished severely. Establish a hierarchical guidance mechanism for handling cases. Cases that cross several provinces or having nationally influential shall be tried under the guidance or supervision of the CNIPA. Cases that cross several regional cities within a province shall be tried under the guidance or supervision of the relevant provincial IP administration.
Sixth, to strengthen capacity building, accelerate the formation of a professional team of administrative adjudication, and actively carry out the technical support system for the inspection and identification of infringement disputes and the construction of a pool of experts. Strengthen the training for staff of administrative authorities engaged in administrative adjudication, and constantly improve the ability of relevant personnel to use the rule of law in both thinking and action to resolve conflicts and maintain stability. Staff members with a Unified National Legal Professional Qualification should be allocated with priority to engage in administrative adjudication work. Through centralized training, business guidance, case lectures, assessment and evaluation, the professional ability and competence of administrative adjudication staff shall be enhanced.
Performing administrative adjudication of IP infringement disputes is an important measure to execute the decisions of the CPC Central Committee and the State Council on strengthening IP protection as well as implementation of the Opinions on Strengthening IP Protection, issued by the General Office of the CPC Central Committee and the General Office of the State Council. Performing norm setting work for administrative adjudication of patent infringement disputes is a specific measure to advance administrative adjudication of IP infringement disputes. The CNIPA will carefully implement the arrangements and requirements related to IP protection made by the CPC Central Committee and the State Council, work closely with other departments and guide local IP administrations to perform norm setting work for administrative adjudication of patent infringement disputes, protect IP with higher intensity and optimize the business environment.