The Role of the Procuratorate in Intellectual Property Cases

The importance of the procuratorate in the system of IP protection in China has long been overlooked. Besides presenting cases in criminal proceedings, the procuratorate also has a critical supervisory role in civil and administrative cases under Chinese legal system. But its impact on these cases, in particular those involving IP disputes, has been controversial and inconsistent. The establishment of Intellectual Property Procuratorate Offices is expected to change the dynamic and make procuratorate a more prominent force in China's IP landscape.

Overlooked Supervisory Function

The procuratorate in China has two main responsibilities. One is to prosecute criminal cases on behalf of the state, similar to the role of the prosecutors in the U.S., U.K. and many other jurisdictions. The other is to supervise enforceable judgments and rulings for all types of cases. In criminal proceedings, the procuratorate can approve arrests, conduct investigations and file and prosecute cases with a competent court. In contrast, and mostly in respect of civil and administrative cases (including those involving IP), the procuratorate is an observer throughout the litigation process. After the court issues an enforceable decision (i.e. either a first instance decision with no possibility of appeal by any party or a decision from an appeal or retrial), if the procuratorate decides such decision is seriously flawed, it will step in and file a protest for the court to re-open the case.