China adopts a two-track system for intellectual property (IP) rights protection: judicial and administrative. IP owners facing infringement may choose the appropriate option based on the specific circumstances or facts of the case to defend their lawful rights and interests.

The litigation perspective

The course of judicial IP protection is through litigation, a part of China's civil law procedure in which the courts follow the “no-action-no-trial” doctrine. When a rights holder discovers an infringer, it prepares a bill of indictment, collects relevant evidence, and files an action with the court. The court would send the infringer these materials and order it to respond in writing before a certain deadline. Following this, the court would then start the procedure to exchange evidence and to formally hear the case. Both parties may fully express their opinions and views to enable the court to sufficiently understand the facts of the case and ultimately make a decision.

The court system in China is divided into four levels: trial courts (at the county/district level); intermediate courts (at the city level); higher courts (at the provincial level); and the Supreme People's Court (SPC) (at the national level). A civil action is decided through the first and second instance hearings. When a court of first instance lands a ruling, the unsatisfied party may choose to appeal; when a court of second instance makes its decision, it is final. Also, the first-instance courts vary in levels for various types of IP cases. The higher, intermediate, and some trial courts have the jurisdiction over relatively simple trademark and copyright cases, while only the higher court, special IP courts (the Beijing, Shanghai and Guangzhou IP Courts, of which only the Guangzhou IP Court currently has cross-regional jurisdiction), and authorized intermediate courts have jurisdiction over patent cases, which involve relatively complex facts or circumstances and require comparing features based on special knowledge in the arts or sciences. Meanwhile, for complicated patent cases, the SPC is now pushing to set up special IP tribunals with jurisdiction over patent cases across certain regions. In January 2017, the SPC authorized the Chengdu, Suzhou, Nanjing and Wuhan Intermediate People's Courts to establish special IP tribunals to exercise cross-regional jurisdiction in these areas.

Advantages of IP litigation