On January 15, the Supreme People's Court published its Opinions on Overall Strengthening of Trial of IP Cases to Provide Legal Guarantee for Building up an Innovative Country (Opinions for short below), which sets forth a series of specific measures to strengthen the trial of IP cases.

A programmatic document on the trial of IP cases

People-in-charge of the Supreme People's Court said, the Opinions are a programmatic document governing the trial of IP cases at present and in a period of time ahead. It will effectively guide the trial practicing of IP cases and help comprehensively strengthen and promote the trial of IP cases by the courts nationwide.　

The basic principle is to punish IP infringers according to law
　　
"Since the announcement of judicial interpretations on IP crimes in late 2004, cases involving IP protection accepted by courts throughout the country increased remarkably", said the responsible people. The basic principle of the Opinions is to punish IP infringers according to law. It pointed out, full part should be given to the functionary role of IP crime judicial guarantee, various measures should be taken to sanction IP criminals according to law so that the function of criminal punishment and prevention against IP crimes can be brought into full play. Regarding such offensive behaviors as shamming and pirating copyrights, criteria of their measurement should be further consummated and standardised, and application of suspension of sentence be standardized. All the guilt must be punished severely according to law in light of the seriousness of case and harmful consequence.

Greater Efforts on Application of Penalty and Enforcement

The people-in-charge noted, the Opinions pointed out that at the time of applying the major form of punishment, greater efforts should be made to apply the means of fine and its execution; attention should be paid to the adoption of such means as to forfeit illicit earnings, criminal instruments, destroy products of infringement, order the infringers to make compensation in order to deprive them of their abilities and conditions economically to recommit any crimes and also to really safeguard the right of the victim to lodge a lawsuit. If any criminal conspiracies are discovered in the trial of civil and administrative cases, such cases and their clues should be timely submitted to the public security organ for reconnaissance and disposal. 　

Intensify judicial protection in civil IP cases　
　
"Seen as a whole, IP disputes in China are civil cases, among them the majority is that of infringement. In the last two decades such cases are on the increase, which indicates that the trial of civil IP cases has played the leading role in protecting IP and encouraging self-innovation", said the people-in-charge.
　　
The Opinions has further set clear the basic measurement for the trial of various civil IP cases and formulated a series of specific measures in order to enhance judicial protection in IP civil cases. Accurate definitions are made for the owner of IP and the right of the social public. The Opinions does not meanly emphasize the protection of the owner, but rather requires that while strengthening IP protection, precise and accurate definitions must be determined as the demarcation between the right of IP owners and that of the social public, and any abuse of IP right is prohibited. 
　
Greater Efforts on the Mediation of IP Cases

The Opinions requires that greater efforts should be made to mediate IP cases and adopt mediation in the whole process of hearing.
　　
In order to carry out the judicial measure for convenience to the people, the Opinions also clearly provides for the implementation of an investigation order system, namely, when the party involved in a case is unable to get by himself any evidence kept in the custody of any state department or any other evidences for some objective reasons, an alternative may be explored that the attorney-in-fact of the party can be authorized to investigate the case and collect such evidence on his behalf.   
　
Suit fees may be exempted for intellectuals in economic difficulty and extremely poor people and enterprises on the line of bankruptcy

The Opinions requires that more efforts should be made on judicial remedy and suit fees be exempted for intellectuals in economic difficulty and extremely poor people and enterprises on the line of bankruptcy. The awareness of the deadline and efficiency of trial should be enhanced, and determination on suspension of any suit be strictly reviewed in order to avoid any proceeding burden on the party. The Supreme Court will improve the jurisdiction system of accepting IP cases.　

Jurisdiction may be delegated to local courts where there are many IP cases　　

"Civil IP cases should be in principle heard by the court above the intermediate court, or by some grass-root courts designated by the Supreme Court after report by the local high court where the number of cases is large with heavy pressure of trial." This is what is recommended by the Opinions published today by the Supreme People's Court.

The Opinions raised requirements for the improvement of the jurisdiction over civil IP cases and the acceptance system: appropriate adjustment should be made as to the standard of jurisdiction over IP cases by classification and the scope of acceptance by the intermediate court be enlarged for the first instance. Regarding such IP cases as governed by general law, the lower court may, after decision by its court panel committee, submit them to the higher court which can direct try them if the requirements are satisfied after its review. 

The Opinions made it clear that the people's court should further improve and unify the criteria of measuring crimes and standardize application of suspended sentence. Severe punishment should be imposed on the criminals in light of the seriousness of their cases. At the time of applying the major punishment, the court should intensify adoption of punishment by means of fine and its execution.

The Opinions specially pointed out, brand trademarks should be recognized with prudence according to law. In the event of any case beyond the scope or not up to the requirements, and any groundless accusation on infringement by the plaintiff, no brand trademark can be recognized.

 

(Legal Daily)

2007-01-24

2007-01-24