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pinions of the Supreme People¡¯s Court on Comprehensively Strengthening the Trial Work Involving Intellectual Property Rights to Provide Judicial Safeguard for the Construction of an Innovative Country The CPC Central Committee in which Comrade Hu Jintao acts as the general secretary, by proceeding from a strategic height of comprehensively building a well-off society and accelerating the undertaking of socialist modernization, expressly proposed the goal and task of building China into an innovative country in the Decision of the Central Committee of the Communist Party of China and the State Council on Implementing the Outline of Science and Technology Planning and Improving the Ability of Independent Innovation and the Decision of the Central Committee of the Communist Party of China on Several Significant Issues Concerning the Construction of a Socialist Harmonious Society. For the purpose of bringing into full play the judicial function of the people¡¯s courts and providing strong and reliable judicial safeguard for building an innovative country, we hereby put forward the following opinions on comprehensively strengthening the trial work involving intellectual property rights. I. Fully understanding the great significance of comprehensively strengthening the trial work involving intellectual property rights 1. Comprehensively strengthening the trial work involving intellectual property rights would definitely promote the construction of an innovative country. The judicial protection of intellectual property rights provided by the people¡¯s courts, as the judicial organs of the state, occupies a basic status in the overall law enforcement protection system for intellectual property rights of the state and plays a leading role. The people¡¯s courts bear irreplaceable legal responsibilities and undertake significant missions in terms of adjusting intellectual property right relationships, safeguarding the legitimate rights and interests of the obligees of intellectual property rights, punishing the crimes infringing upon intellectual property rights and maintaining socialist market economic order, etc. Comprehensively strengthening the trial work involving intellectual property rights would definitely promote the implementation of the strategy of reinvigorating China through human resource development and the comprehensive implementation and embodiment of the guideline of respecting labor, knowledge, talents and creation. 2. Comprehensively strengthening the trial work involving intellectual property rights would definitely help set up a good international image of China. It is not only an actual requirement for China to participate in international competition and create a more attractive soft environment for investment to better introduce in foreign capital and advanced technologies, but also an objective requirement for China to fulfill its external promises and set up a good international image. Comprehensively strengthening the trial work involving intellectual property rights would definitely help better protect and attract foreign investment, safeguard and improve the international competitiveness of Chinese enterprises and further promote the strategy of opening wider to the outside world. By rigorously punishing the tortious acts upon intellectual property rights according to law, severely punishing such gross violations and crimes as trademark counterfeit and piracy according to law and fairly protecting the legitimate rights and interests of the foreign and Chinese parties concerned according to law, the people¡¯s courts would definitely make contributions to setting up a good image of China in the field of judicial protection of intellectual property rights. 3. Comprehensively strengthening the trial work involving intellectual property rights would definitely promote the construction of a socialist harmonious society. The trial work involving intellectual property rights shall have the creative desires beneficial for social progress respected, the creative activities supported, creative ability fully played, creative achievements protected and make the society energetic and vigorous. It shall also promote and safeguard the establishment of honest mechanism in the society, guide people to keep promises, attach importance to good credit, maintain good morality, trust each other, increase value identity and cohesiveness and realize an honesty and friendly society. II. The guiding ideology, goal and task and basic principles of the trial work involving intellectual property rights 4. To provide judicial safeguard for building an innovative country, we must adhere to being guided by Deng Xiaoping Theory and the important thoughts of ¡°Three Represents¡±, effectively implement the scientific view of development in an all-round way, stick to the guideline of ¡°impartial jurisdiction and serving the people heart and soul¡± and the working theme of ¡°justice and efficiency¡± in accordance with the requirements for building an innovative country and further strengthen the judicial protection of intellectual property rights. We shall also protect intellectual property rights according to law, safeguard fair competition, promote independent innovation, serve the policy of opening to the outside world and implement the judicial protection of intellectual property rights throughout the whole process of the creation, management and application of intellectual property rights so as to provide strong and effective safeguard for the implementation of intellectual property right strategy of the state and the construction of an innovative country and socialist harmonious society and make due efforts to create an impartial, highly-efficient and authoritative legal environment. 5. The major goals and tasks of providing judicial safeguard for the construction of an innovative country are as follows: the trial work involving intellectual property rights shall be comprehensively strengthened; the functions and roles of criminal, civil and administrative trial of intellectual property rights shall be given full play; the litigation system of intellectual property rights shall be constantly perfected; the judicial protection system of intellectual property rights shall be further improved; the quality of the judges in charge of the trial work involving intellectual property rights shall be notably improved; the jurisdiction shall be impartial, highly-efficient and authoritative, the obligees are active in safeguarding their legitimate rights and interests and it is convenient for them to do so, the infringers will definitely be punished, a sound judicial protection environment of intellectual property rights in which knowledge and fortune circulate in order shall be basically established; the judicial safeguard ability and level of intellectual property rights shall be notably improved; and the judicial requirements for building an innovative country shall be satisfied in an all-round way. 6. To provide judicial safeguard for building an innovative country, the following principles shall be adhered to: firstly, we must adhere to the principle of impartial jurisdiction. We shall take impartial jurisdiction as the soul and life of the trial work involving intellectual property rights all the time and do best to realize and maintain impartiality and justice in the field of intellectual property rights through impartial, highly-efficient and authoritative jurisdiction over intellectual property rights. Secondly, we must adhere to the principle of uniform jurisdiction. We shall handle cases in strict conformity with legal provisions, ensure uniform application of laws, regulations and judicial interpretations to the trial work involving intellectual property rights and make great efforts to realize the coordination between judicial standards and ruling results. Thirdly, we must adhere to the principle of equal protection. We shall equally protect the legitimate rights and interests of both foreign and Chinese parties concerned, firmly reject local protectionism and self-centered operation by different departments and overcome local blockade and industrial monopoly. Fourthly, we must adhere to the interest balancing principle. We shall properly handle the relationship between protecting intellectual property rights and safeguarding public interests and that between stimulating scientific and technological innovation and encouraging the application of science and technology. We shall effectively protect intellectual property rights and at the same time deter the abuse of right and illegal monopoly. Fifthly, we must adhere to the principle of serving the overall situation. We shall firmly establish the perspective of overall situation and service consciousness, get over the simple business perspective of handling a case just as a case and realize the organic unification of the legal effect of handling a single case and its social effect. III. Bringing into full play the functional role of judicial protection of intellectual property rights and safeguarding the creative energy and innovation ability of the whole society 7. Severely punishing the crimes against intellectual property rights. We shall give full play to the functional role of the criminal judicial protection of intellectual property rights, exercise all kinds of measures of criminal sanction according to law and give play to such functions as criminal punishment and preventing the crimes against intellectual property rights. As for such criminal behaviors involving intellectual property rights as counterfeit and piracy, etc, we shall further perfect and unify the standards for conviction and sentencing, regulate the application of probation and impose severer punishment in light of the specific criminal circumstance and the harmful consequences; strengthen the application and enforcement of pecuniary penalty at the same time when applying the principal penalty; pay attention to economically depriving the infringers of their capacity and conditions for the recommitment of crime by adopting such measures as recovering illegal gains, capturing instruments of crime, destroying the tortious products and ordering them to make compensation for losses; try the self-incriminating criminal cases infringing upon intellectual property rights according to law and effectively safeguard the right of a victim to bring private criminal prosecution; where it is found in the trial of an administrative case that a suspected criminal offense that shall be given criminal punishment is only given administrative punishment or administrative handling, the criminal clew shall be transferred to the public security organ for investigation and handling in a timely manner at the same time when a judicial suggestion is proposed to the administrative organ; where any suspected criminal clew is found in the trial of a civil case, if it satisfies the conditions for bringing private criminal prosecution, the obligee shall be informed that he/she is entitled to bringing private criminal prosecution simultaneously; where a public prosecution shall be brought according to law, the information and materials involving the suspected crime shall be transferred to the public security organ for investigation and handling in a timely manner, if the trial of a civil case is not affected by the transfer, the case may be continually tried. 8. Properly trying the civil cases involving intellectual property rights. We shall pay attention to giving full play to the leading role of the civil trial of intellectual property rights in protecting intellectual property rights and stimulating independent innovation. We shall try the cases of technical intellectual property rights involving patent, technical secret, computer software, new plant variety and layout-design of integrated circuits according to law, reasonably and moderately protect innovation results and strengthen the protection of the key core technologies which play leading role in the significant breakthrough of economic growth and have independent property rights; we shall try the cases of intellectual property rights involving such marks as trademark and landmark and all kinds of cases of unfair competition according to law and rigorously regulate market competition order; we shall try the cases of intellectual property rights involving such expression vehicles as works and audio and video products according to law and promote the sound development of the industries related to copyright; we shall try new types of disputes over intellectual property rights involving computer network and new technologies according to law and promote the healthy growth of emerging industries; we shall try foreign-related cases of intellectual property rights according to law and equally protect the legitimate rights and interests of foreign and Chinese parties concerned; we shall actively protect traditional knowledge, inheritance resources and non-governmental literature and protect the holders¡¯ rights and interests of informed consent and benefit sharing; we shall scientifically and reasonably interpret the scope of rights according to law, correctly apply the methods for infringement determination and strictly grasp the conditions for determining the equal characteristics of the cases of intellectual property rights and; we shall cautiously determine well-known trademarks according to law, as for any case that is beyond the scope of determination or fails to satisfy the conditions for determination or any case in which the infringement accused by the plaintiff is not tenable, no well-known trademark may be determined; we shall pay attention to providing dual protection for the parties concerned in a case involving business secrets and balance the relationship between the freedom of choosing work and the protection of business secrets; we shall also accurately determine the effect and responsibilities of a contract on intellectual property right, strictly stipulate the conditions for the rescission of such contract and fully respect the autonomy of will of the parties concerned. 9. Supervising and supporting the administration of administrative organs according to law. We shall give play to the function of making judicial examination on the administrative enforcement of law of intellectual property rights by means of administrative trial, supervise and support the administration of administrative organs according to law, protect the legitimate rights and interests of the administrative counterparts of intellectual property rights, safeguard the administrative order of intellectual property rights and promote the administrative protection of intellectual property rights. We shall support administrative organs to crack down upon tortious acts according to law; where an administrative organ applies for compulsory execution of an administrative handling decision, if it satisfies the conditions for compulsory execution, it shall be ruled in a timely manner and the compulsory execution shall be approved; strengthen judicial supervision over the administrative omission of the serious tortious acts against intellectual property rights and urge the administrative organs for law enforcement to deter the tortious acts according to their functions; perform the obligation of judicial review over the cases of disputes over the ownership of such intellectual property rights as patent right and trademark right and conduct comprehensive examination on the legality of an administrative behavior from the perspectives of the verification of facts and the application of law. 10. Strengthening supervision over the trial of intellectual property rights and case coordination. We shall smooth the channel for the application for retrying a case of intellectual property rights, rigorously examine a case attracting much attention from the parties concerned and the society, retry the case and amend the original judgment in a timely manner in case any wrong judgment is found; where it is determined that an appeal is made unreasonably, we shall have the work for stopping litigation and visits done properly in accordance with the relevant laws and policies; we shall strengthen supervision over the trial of cases of disputes over administrative authorization of intellectual property rights. As for an affiliated case exerting great influence on the society, the trial courts shall pay attention to communicating with each other, unify the trial standards and guarantee the consistency of judgments, where it is found that the judgments may conflict with each other, the situation shall be reported to the court of higher level for guidance, coordination and resolution; the reporting system for significant cases of intellectual property rights shall be established, as for a case influencing the overall situation and having great impact, a case whose object of litigation is huge or a new-type case without precedent, the court accepting such case shall inform the court of higher level of the trial situation; and the system for the determination and archival filing of well-known trademarks shall be further perfected. 11. Perfecting the system for the enforcement of cases of intellectual property rights. The system of centralized enforcement of cases of intellectual property rights shall be established, any court accepting relatively more cases of intellectual property rights shall appoint a special collegial panel or group in the enforcement department to be responsible for the centralized enforcement; where any person against whom a judgment or order is being executed refuses to desist from infringement as ordered in an effective judgment and continues the original tortious act, in addition to the fact that the obligee may investigate his/her civil liabilities according to law, the court shall provide assistance for the public security organ or the procuratorial organ to investigate his/her criminal liabilities under the crime of refusing to enforce a judgment. 12. The system for the jurisdiction and acceptance of civil cases of intellectual property rights shall be perfected. The first instance of civil cases of intellectual property rights shall, in principle, be conducted by the courts at or above the intermediate level; as for a place where there are too many such cases and the pressure on the trial of these cases is too much, the higher court may report the situation to the Supreme People¡¯s Court and ask it to designate some grass-root courts to rule some cases of intellectual property rights; the system for the designation jurisdiction of cases involving patent, new plant variety and the layout-design of integrated circuits shall be exercised in a strict way; the standards for the grade jurisdiction of civil cases of intellectual property rights shall be adjusted properly and the intermediate courts¡¯ acceptance scope of the cases of first instance shall be expanded; as for a case of intellectual property rights bearing general significance in the application of law, the lower court may, upon discussion and decision of the judicial committee, report it to the higher court to try, and the higher court may directly try the case if it determines that the case satisfies the relevant conditions upon examination; we shall actively explore the reform of subject-matter jurisdiction for different instances of cases of intellectual property rights; as for a case of provisional measures before litigation, the department putting it on record shall immediately transfer it to the division responsible for the trial of cases of intellectual property rights, the professional judicial personnel shall examine, make sure that a judgment is made within the statutory time limit, coordinate and immediately enforce the judgment. 13. Strengthening infringement compensation and civil punishment according to law. We shall strengthen the applicable rules on the damages for the infringement upon intellectual property rights, implement the principle of full compensation, make great efforts to reduce the cost for defending rights and strengthen the deterring effectiveness of civil punishment. We shall properly lighten the obligees¡¯ burden of proof; where there is evidence to prove that an infringer has exercised the tortious act on many occasions at different time, we may presume that the tortious act is continuous and determine the corresponding extent of compensation; where a plaintiff, as a natural person, suffers mental injury from the tortious act, we shall determine reasonable consolation money for mental injury in light of his/her petition; the attorney fees paid by the parties concerned in accordance with the relevant provisions for a litigation shall be reasonably determined in accordance with the petitions of the parties concerned and by comprehensively considering the necessity, the degree of support to all claims, the proportion between the claimed amount of damages and the actually judged amount of damages and other relevant elements, and shall be listed into the extent of compensation; we shall determine the corresponding liabilities for compensation in light of the subjective faults of the parties concerned, and apply civil sanction to punish the infringers according to law. 14. The provisional measures shall be applied correctly according to law. An application for provisional injunction, prior enforcement, attachment or evidence conservation made by a party concerned before or during a lawsuit is brought shall be accepted in an active manner, examined in a swift manner, ruled in a cautious manner and enforced immediately. We shall attach great importance to the time effect of the provisional measures adopted before a lawsuit is brought; correctly understand the material conditions for adopting provisional measures, as for provisional injunction, we shall, at the same time when emphasizing the examination of infringement possibility, take the prescribed period for litigation and the damage situation into consideration; as for evidence conservation, we shall, at the same time when considering the infringement possibility, put focus on considering such elements as evidence risks and the applicant¡¯s ability of obtaining evidences; we shall also determine the guarantee requirements in a scientific and reasonable way. 15. The determination of the facts concerning professional technologies shall be handled properly. We shall pay attention to giving play to the roles of people¡¯s assessor, expert witness, expert consultation and technical appraisement in solving the problems encountered in the determination of the facts concerning professional technologies. We shall appoint the generally recognized experts who have professional technological speciality and certain legal knowledge and are recommended and submitted for appointment by the grass-root courts of the cities they reside; support the parties concerned of a case to invite the personnel with expertise to appear in court as auxiliary personnel of a lawsuit and make explanations on the technical problems concerned in the case without being restricted by the time limit for producing evidence; as for a complex and difficult case of intellectual property right, we may consult the technical and legal experts in the relevant field; as for a professional technological problem which is hard to determine by any other means, we may entrust a professional organ to conduct technical appraisement. As for such evidential material formed beyond the territory as publication whose authenticity may be directly and preliminarily identified, it is not required to go through the formalities for notarial certification unless the opposite party concerned is able to propose effective challenge on its authenticity and the party producing the evidence can¡¯t retort effectively. 16. Any abuse of intellectual property right shall be prohibited. We shall accurately define right limits of the obligees of intellectual property rights and the general public, and examine and support such defending grounds of the parties concerned as prior right, right of prior use, known technology, estoppel, fair use and legitimate use, etc, according to law; prevent the acts that illegally monopolize technologies and impede technical advances, verify such causes for the nullification of technical contracts as restricting research and development, forcible grantback, impeding implementation, tie-in sale, limited purchase and prohibiting effectiveness questioning, etc, and maintain fair competition in the technological market; prevent the obligees from abusing infringement warning and litigious right and perfect the system for determining non-tort actions and that for indiscriminate lawsuits and corresponding compensation. 17. Making more efforts in the conciliation of cases of intellectual property rights. We shall, at the same time when trying the cases of intellectual property rights by means of judgment, put stress on the conciliation of such cases through the whole process of trial, adhere to the principle of ¡°conciliating when possible, judging when necessary, combining conciliation with judgment and solving the dispute when the case is concluded¡± and increase the rate of the cases conciliated and that of the cases compromised and withdrawn; pay high attention to the conciliation conducted in the cases of provisional measures before litigation, actively explore and summarize the experience in coordinating administrative cases of intellectual property rights and conciliating self-incriminating criminal cases; pay attention to giving play to the roles of industrial associations and professional personnel in terms of communication, negotiation, eliminating the opposing sentiment and settling contradictions and disputes. 18. Earnestly implementing the measures of jurisdiction for the people. We shall strengthen litigation guidance and litigation interpretation, improve the parties¡¯ capacity of participating in actions, and increase the public reliability and executive force of judgments. We shall compile a guide for the actions of intellectual property rights; adhere to open trial system; implement the system of informing the parties concerned of their rights and obligations in an all round way and the litigation risk warning system; explore the system for guiding the parties in producing evidences; explore the investigation order system and put it into trial implementation, as for any evidence that is kept by the relevant department of the state and can¡¯t be obtained by a party concerned on his/her/its own strength or any other evidence that can¡¯t be collected by a party concerned because of objective reasons, the court may try the practice of authorizing the attorney agent of the party to investigate and obtain the evidence; we shall make more efforts in implementing judicial relief, deduct or exempt the legal cost of the intellectuals with economic difficulties and the enterprises that are in specially difficult situation or are close to bankruptcy; strengthen the examination of representative capacity and regulate the actions of intellectual property rights lodged by citizens by proxy according to law; regulate the relationship between judges and lawyers according to law, seriously examine the litigation materials submitted by lawyers according to law and sufficiently hear the lawyers¡¯ opinions; strengthen the awareness of concluding a trial within the prescribed time limit and the awareness of efficiency, strictly examine and cautiously make decision on discontinuing an action in a rigorous manner to relieve the parties from unnecessary litigation exhaustion; improve the capacity in preparing ruling papers, which shall clarify the right and wrong by legal reasoning. IV. Adopting effective measures to improve the judicial safeguard of intellectual property rights 19. Strengthening the professionalization of the trial team of intellectual property rights. We shall pay attention to selecting and cultivating the judges of intellectual property rights from the personnel who acquire their mastery of laws, have relatively good foundation in foreign languages, have scientific or engineering background and accumulate certain trial experience, further perfect the professional structure of the trial team of intellectual property rights; pay attention to maintaining the judge team of intellectual property rights relatively stable; establish scientific and reasonable performance evaluation system and avoid the practice of simply taking the number of cases as a standard of measurement; strengthen the training of the judges of intellectual property rights and improve their professional skills; improve the political quality and professional ethics of the judges of intellectual property rights and effectively improve their awareness of honesty and jurisdiction. 20. Improving the judicial organization of intellectual property rights. The Supreme People¡¯s Court, any higher court, intermediate court that accepts relatively more cases of intellectual property rights and any grass-root court designated to accept cases of intellectual property rights shall establish independent intellectual property division, while any other intermediate court shall set up a collegial panel to try the cases of intellectual property rights in a unified way; such functional departments as those responsible for putting a case on record, criminal trial, administrative trial, enforcement and trial supervision, etc, shall appoint special collegial panels and professional personnel to be responsible for the examination, trial and enforcement of the cases of intellectual property rights. 21. Strengthening the coordination and cooperation among the functional departments responsible for the protection of intellectual property rights. We shall strengthen the business coordination and communication among the departments responsible for the criminal trial, civil trial and administrative trial of the cases of intellectual property rights, strengthen work connection between the departments responsible for the trial of intellectual property rights and the departments of trial supervision, and strengthen information informing and business communication between the courts of higher level and lower level. We shall pay attention to strengthening work coordination with the relevant administrative enforcement departments of intellectual property rights, strengthening cooperation and mutual check with the public security organs and procuratorial organs in conducting the work relating to the criminal enforcement of law of intellectual property rights, and strengthening information communication and mutual assistance with the comprehensive departments in charge of foreign affairs, commercial affairs, science and technology, information industry, news and publicity, etc, in conducting the work relating to the protection of intellectual property rights. 22. Exploring and establishing new mechanisms for the trial work of intellectual property rights. We shall propose the organic basis for perfecting the protection of intellectual property rights and scientific countermeasures for smoothing the operation of programs by proceeding from the overall improvement of the capacity of providing judicial protection for intellectual property rights and aiming at facilitating the litigations of the parties concerned and the trial of courts, optimizing the allocation of trial resources, simplifying relief procedure and safeguarding judicial unification. We shall also make in-depth research on and promote the perfection of the mechanisms for the settlement of disputes over determining the ownership of such intellectual property rights as patent and trademark, etc. 23. Making greater efforts in making judicial interpretation of intellectual property rights and legislative suggestions. We shall further improve the quality of judicial interpretations, strengthen the maneuverability and transparency of judicial interpretations, unify judicial scale and constantly perfect the litigation system of intellectual property rights; actively participate in the legislative activities of intellectual property rights, propose legislative suggestions to the legislative organs and the relevant departments of the state in a timely manner, affirm the judicial experience that is approved by practices as mature enough and feasible by means of legislation, and promote the constant improvement and perfection of the legal system of intellectual property rights. 24. Making in-depth investigation and research on the judicial protection of intellectual property rights. We shall, in light of the characteristics of the development of science and technology, economy and culture and the actual situation of the trial work, strengthen the research on the application of law to the new problems encountered in enforcing the judicial protection of intellectual property rights and the construction of litigation system, draw lessons from the beneficial experience of other countries in the protection of intellectual property rights, follow the new international research results of intellectual property rights, put forward scientific, reasonable and feasible countermeasures and suggestions and promote the conversion of investigation and research results. We shall also actively participate in the international legislative activities of intellectual property rights. 25. Actively proposing suggestions on the jurisdiction of intellectual property rights. As for the problems encountered by local governments, enterprises and scientific research institutions and found in the trial of the cases of intellectual property rights, we shall put forward judicial suggestions to the competent administrative departments, industrial associations, enterprises and scientific research institutions, etc, urge them to perfect the relevant systems, strengthen administration, plug the loopholes, eliminate hidden trouble, and provide decision-making basis for the local Party committees and governments to formulate the relevant policies. As for any development of intellectual property rights that may exert significant impact on China¡¯s scientific, technological and economic development and industrial prosperity, we shall send pre-warning signals to the relevant departments in a timely manner so as to make good preparations. 26. Making greater efforts in publicizing the judicial protection of intellectual property rights. We shall, on the basis of the news release system of the people¡¯s courts, release the important news and typical cases found in the trial work of intellectual property rights; adhere to the principle of open and transparent trial and publish the effective ruling papers on intellectual property rights via the internet in strict accordance with the relevant provisions and requirements; invite the deputies to the people¡¯s congresses, members of political consultative conference, representatives of industrial associations and the relevant departments, representatives of foreign governments and international organizations¡¯ institutions stationed in China, experts, scholars and other representative personnel and general public to audit in the court trial of influencing cases so as to strengthen the publicity and creditability of the trial work of intellectual property rights; we shall make greater efforts in publicizing to the outside and deepen the world¡¯s comprehensive and objective understanding of China¡¯s judicial protection system of intellectual property rights and the current status. It is a sacred responsibility of the people¡¯s courts to provide strong and effective judicial safeguard of intellectual property rights for the construction of an innovative country. The people¡¯s courts of various levels and all judges of intellectual property rights shall constantly improve their sense of responsibility and sense of mission of doing a good job in conducting the trial work of intellectual property rights to provide strong and effective judicial safeguard for the construction of an innovative country, honor the mission, work hard, seek truth and be practical, make explorations and innovations and make great efforts to construct a highly efficient and authoritative judicial protection system of intellectual property rights so as to provide a sound legal environment for the construction of an innovative country. |
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