In 2017, Shanghai Intellectual Property Court thoroughly implemented the innovation-driven development strategy and national intellectual property strategy, continued to deepen the reform and innovation in IPR trials, and brought into full play the role of IPR trials in stimulating and protecting innovation as well as promoting S&T progress and social development by improving the IPR litigation system and effectively giving full play to the functions of various systems. Throughout the year, a total of 2,030 intellectual property cases were accepted and 2,031 cases of all kinds were concluded, up 8.15% and 8.2% respectively from the same period last year. The main initiatives are as follows:

I. Putting Forth Efforts to Solve Difficulties in Providing Evidence to Relieve Obligee’s Burden of Proof

1. Giving Full Play to the Efficacy of Litigation Preservation Measures. The Court established a litigation preservation mechanism with standard procedures and powerful protection, and meanwhile explored and improved the litigation preservation enforcement mode of “judge +enforcement officer + technical experts + technical investigator.” In 2017, it granted judgment in favor of 198 applications for litigation preservation, including 30 pre-litigationpreservations and 168 on-trial preservations, laying a solid foundation for the effective trial of cases and resolution of disputes.

2. Bringing into Full Play the Role of Measures such as Investigation Order in Investigation and Evidence Collection. In disputes involving employee inventors, design reward, remuneration, patent licensing contract, etc., as it’s hard for the inventor to obtain the sales contact and invoice, etc. from his/her employer and the licensee, the Court reasonably allocated the burden of proof and guided inventors’ employers to proactively submit the sales invoice of relevant patent, laying a good foundation for finding out the accurate amount of remuneration of the employee inventor. For sales data and other information mastered by the third party, the Court facilitated evidence collection by issuing court investigation order and letter of entrusted investigation, etc., so as to relieve the obligee’s burden of proof.

3. Promoting Good Faith in Intellectual Property Proceedings. The Court explored a system of good faith litigation notice in trials to reinforce the litigants’ duty of being honest and providing assistance, and guide them to tell the truth, give true accounts in proceedings and render punishment on dishonest litigation behaviors. In several actions of dispute over jurisdiction brought by applicants that are obviously without reasonable grounds, after the explanation of the Court, the applicants withdrew on their own initiative the objection to jurisdiction and thus avoided unreasonable delay of trial due to objection to jurisdiction. The Court also explored the application of evidence impairment removal rules to make the party refusing to submit evidence bear the adverse consequences.

II. Focusing on Solving the Low CompensationProblems to Fully Realize the Market Value of Intellectual Property Rights

1. Making Efforts to Address the Problem of Low Infringement Cost and High Right Protection Cost. The Court established an infringement compensation judicial determination mechanism oriented by the respect of intellectual property rights and encouragement of innovative application and guided by the market value of intellectual property that meets the market expectation of obligees, and actively explored the role of market value factors such as intellectual property popularity in the determination of damage compensation. The Court also determined that the obligee’s reasonable expenses for right protection should be included in the compensation and the losing party should bear the obligee’s cost for right protection. 

2. Determining the Amount of Compensation at Judicial Discretion Based on Statutory Limit of Compensation. When it’s hard to prove the exact amount of loss or gain due to the infringement but it’s able to prove the aforementioned amount obviously exceeds the ceiling of statutory compensation, the Court determined the amount of compensation above the ceiling of statutory compensation based on all the evidence of the case. There are 45 cases subject to compensation above the ceiling of statutory compensation.

3. Imposing Severer Punishment upon Willful and Repeated Infringement. For repeated infringement, willful infringement and infringement with other serious circumstances, the Court gave severer punishment and increased the amount of compensation to make infringers pay heavy prices and effectively deter IPR infringement. In the case of dispute over trademark infringement filed by Lafite Rothschild, the Court held through trial that the defendant had obvious subjective bad faith and thus ordered the defendant to compensate RMB 2 million for economic losses (including reasonable expenses) in order to effectively deter the infringement. 

III. Solving the Problem of Long Period to Make Judicial Protection More Convenient and Effective

1. Deepening the “Four-in-One” Technical Fact-finding Mechanism. The Court perfected the rules on the comprehensive application of the “four-in-one” technical fact-finding mechanism that integrates technical investigation, technical consultation, expert jury and technical appraisal, and issued the Rules on Court Appearance of Technical Investigators. In 2017. technical investigators participated in the trials of 67 cases, appeared in 91 court sessions, issued 16 technical examination opinions and participated in 212 preservations, investigations and consultations, etc., while expert jurors participated in the trials of 158 cases, 42 expert consultations and 32 technical appraisals. The average trial period of cases is 113.07 days throughout the year, down 16.19 days from last year.

2. Deepening the Diversified Dispute Resolution Mechanism. The Court gave full play to the role of social organizations and industrial associations in diversified dispute resolution and engaged resident mediators for mediation on a regular basis, so as to advance and deepen the pre-trial and court mediation in intellectual property cases. In 2017, there’re 115 cases where the parties agreed to pre-trial mediation, increased by 18.56% over the same period last year. 31 cases were mediated successfully, accounting for 26.96%. The Court also formulated the Plans for Advancing the Implementation of Entrusted Court Mediation, actively promoted the entrusted court mediation, especially entrusted mediation in second instances, and facilitated the separation of complex cases from simple ones. 

3. Strengthening In-depth Application of Information Technologies. File scanning procedures were further optimized, electronic files were applied more extensively, pinyin-to-character conversion was explored, first-instance judgment document generation aided system was established, and the intelligence level of trial management, court hearing and litigation service kept increasing. To shorten the litigation period, the Court, upon the application of the parties, tried to use remote video links to open court sessions, conduct mediations, convene technical hearings, and address the inquiries on technical expertise, thereby realizing “let data run more and people run less.”

4. Establishing the Mechanism of Service by Entrusted Notaries. The Court established a mechanism to entrust notary office with service. For cases that can’t be served via postal delivery, the Court entrusted a notary office with personal service to avoid the service by publication that takes a long time, which not only increases the rate of successful service and the efficiency of litigation, but also notarizes the service process. Since the cooperation mechanism was established, the Court has entrusted 65 services, among which 33 worked out.