Opinion: China's judiciary increases IP savvy

There has been an undeniable governmental and judicial focus on IP rights in China over the past decade. The vice president of the Supreme People's Court of China, Xi Xiaoming, noted that the overall trend is towards strengthening the judicial protection of IP rights, exemplified by recent developments that improve consistency, predictability and transparency in the adjudication of IP disputes.

Structural reform

From 2009 to 2012, civil IP cases have increased an average of 38% per year; administrative IP cases have increased an average of 33% per year; and criminal IP cases have increased an average of 48% per year. The rise in IP disputes is expected to continue, and the Chinese courts are preparing for the incoming onslaught of IP litigation. To improve the quality and consistency of adjudications in IP cases, China has established specialised IP tribunals at all four levels of People's Courts, from the Supreme People's Court (SPC) down to certain Primary People's Courts, comprised generally of judges trained in IP law. Another reform is the "three-in-one" adjudication system, unifying civil, administrative and criminal IP cases under a single IP tribunal. Before the reform, civil, administrative and criminal IP cases, even if related, were heard by different judicial divisions. The three-in-one system should not only improve the efficiency and quality of IP adjudications but also minimise inconsistencies caused by different tribunals hearing related matters.

Adjudication standards

The laws in China are notoriously ambiguous, and since China adheres to a civil law system, litigants cannot rely on prior court decisions to interpret the law. Nevertheless, IP litigation is becoming much less of a black hole as courts actively promulgate interpretations and guidelines aimed at clarifying and unifying the law. The SPC has been especially active, issuing a number of IP-related interpretations, judgments and guiding cases over the past few years. With specialised IP tribunals and meaningful court guidance, IP litigants in China are now working with a judiciary more experienced in IP cases and under clearer adjudication standards. This should result in better-reasoned decisions than those in the past.

Competent judiciary

While the challenges to conducting IP litigation in China cannot be underestimated, IP litigants today are dealing with a more professional, knowledgeable and open-minded judiciary than before. Chinese courts are participating more frequently in international training and exchange programmes and are increasingly cognisant and accepting of international IP laws and standards. For instance, most judges from the SPC IP tribunal, the Beijing Higher People's Court's IP tribunal, and the US Court of Appeals for the Federal Circuit participated in a landmark US-China IP adjudication conference held in Beijing in May 2012. Also, many IP judges appear increasingly open-minded and willing to consider the parties' arguments; some IP judges will consider arguments citing foreign case law when deciding novel or unsettled IP issues. Having a more competent IP judiciary is increasingly important given the key role of innovation and IP in China, the magnitude of China's IP infringement problem, and the large volume of IP disputes to come.

Increasing transparency

IP stakeholders in China will be better informed of the legal landscape due to the growing transparency of the courts' decision-making process. IP judgments have been published online sporadically since March 2006 when the SPC launched a website called China IPR Judgments & Decisions, which listed nearly 50,000 judgments and orders by 2013. As of January 1 2014, the Provisions Concerning the Publication of Judgment and Ruling Documents on the Internet by People's Courts (最高人民法院关于人民法院在互联网公布裁判文书的规定) require all final judgments issued by the People's Courts to be published online. Judges must submit judgments for publication within seven days of the effective date.

Double-edged sword

The trend towards a more specialised, predictable and transparent Chinese judiciary is generally welcomed. However, this may be a double-edged sword for business owners in China. Enhanced judicial protection of IP means more IP owners will seek to enforce their rights in court. Given the large volume of low-quality and hijacked IP in China, this could also mean more business owners being forced to defend against dubious IP infringement claims. Only time will tell.


William (Skip) Fisher and Ting Xiao, Hogan Lovells, Shanghai


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