April 26, 2018  People’s Court Daily  Page 5

Reporter Yan Jianyi   Correspondents Chen Feng & Chen Yingying

“To strengthen the protection of intellectual property rights (IPR)is the centerpiece of the system for improving property rights protection, andwillprovide the biggest boost to the competitiveness of the Chinese economy.” On April 10, President Xi Jinping said in a keynote speech at the Boao Forum for Asia.

In today’s society, IPR protection is crucial to creating a stable, equitable, transparent, and foreseeable business environment. Shanghai is at the forefront of judicial reform. So, how does Shanghai Intellectual Property Court bring into play its advantage as an international metropolis to continuously optimize the business environment and revitalize the market? Recently, the reporter visited the court to make an in-depth investigation.

Respond to needs: from the establishment of offices to the issuance of implementation opinions

Since its establishment at the end of 2014, Shanghai Intellectual Property Court has deeply realized that creating a good environment for IPR protection is an important step to enhance Shanghai’s attractiveness, creativity and competitiveness, and also an important part of building a legalized, international and facilitating business environment. For this reason, the court has always been committed to giving full play to the leading role of judicature in IPR protection, and actively providing judicial services and guarantees for encouraging and safeguarding scientific and technological innovation and promoting the optimization of the business environment.

With the increase of cases, judges of Shanghai Intellectual Property Court found that high-tech enterprises, especially small and medium-sized enterprises, are highly eager for innovation and have made lots of achievements. However, little effort has been made in the protecting of intellectual property rights of these innovative achievements, leaving enterprises held up by lawsuits. Some well-known large enterprises are often subject to infringement, and the infringing products have a great impact on the market share, which is very detrimental to their development.

“Should the problems existing in the IPR management and protection of enterprises be noticed earlier, IPR infringement would have been avoided to a large extent. How to shift from post-trial to pre-warning and prevention remains a concern of Shanghai Intellectual Property Court.” Wang Qiuliang, President of Shanghai Intellectual Property Court, said. Hence, Office of Judge Chen Huizhen, National Adjudication Expert (hereinafter referred to as “Office of Judge Chen Huizhen”) was set up accordingly.

In June 2015, Office of Judge Chen Huizhen was established in Shanghai Zhangjiang Hi-Tech Park. Every month, office members will visit the park someday to publicize IPR protection among enterprises or visit different parks to carry out surveys or give lectures.

On the first day when the office was established, lots of enterprises came to consult various problems. “How to shorten the litigation period?”“It’s very difficult to identify drug patent infringement and how should we obtain evidence effectively?”“How to collect their evidence of infringement when technicians change jobs?.”…In just two hours, team members fully perceived the urgent need for IPR protection brought by technological innovation.

“As a special court established under the background of implementing national innovation-driven development strategy and the reform of judicial system, Shanghai Intellectual Property Court shoulders the responsibility of protecting and encouraging innovation. The Office, as a window of judges, plays an active role in providing judicial guarantees for the building of business environment, and the desire of enterprises also showed that the establishment of the Office is effective.” Wang Qiuliang said.

In order to implement the decisions and arrangements of the CPC Central Committee on deepening business environment reform and CPC Shanghai Municipal Committee on optimizing the business environment and speeding up the development a new system of open economy, Shanghai Intellectual Property Court began to formulate relevant measures at the beginning of 2018 and extensively listened to the opinions of Lawyers Association, FTZ Administrative Committee, Federation of Industry and Commerce and enterprise representatives to learn about the pain points and difficulties in IPR protection.

In March, 2018, Shanghai Intellectual Property Court issued the Opinions on Giving Full Play to the Judicial Functions to Guarantee the Optimization of Business Environment in Shanghai (hereinafter referred to as the “Opinions”), which put forward specific countermeasures to solve the difficulties in providing evidences, finding out technical facts, determining amount of compensation, and enforcing the judgments, etc. from five aspects, i.e. strengthening the guidance of principles, performing functions conscientiously, perfecting the adjudication mechanism, deepening the judicial reform, and extending the judicial functions.

“These Opinions were formulated and issued based on the special investigation of legal difficulties and judicial needs of market players during their IPR creation, protection and application, especially aiming to create a legal environment that encourages and protects innovation. They conformed to the highest national standards and level, and were in line with the requirements of the CPC Central Committee on strengthening the reform and innovation in the field of intellectual property adjudication, thereby responding to the needs of developing a new system of open economy in Shanghai, maintaining Shanghai’s good international reputation and image of opening to the outside world, and better play the role of centralized jurisdiction of IPR cases in unifying the application of law, establishing the rules of adjudication and guiding the social value and so on.” Wang Qiuliang told the reporter.

Case study: raise the consciousness of IPR protection

On April 13, 2018, Shanghai Intellectual Property Court held a case study workshop on the theme of “protectingtechnological innovation and promoting the optimization of business environment.” This was one of the steps to implement the Opinions.

More than 30 representatives of enterprises from Zhangjiang High-tech Industrial Development Zone gathered here and attended a court hearing about a case of computer software copyright infringement. At the workshop, the enterprise representatives also received the Typical Cases of Shanghai Intellectual Property Court on Providing Judicial Guarantees for Building the Business Environment. Wu Yingzhe, Judge of No.2 Intellectual Property Division of Shanghai Intellectual Property Court, gave a lecture on the hot and difficult legal problems by analyzing the above-mentioned case, while Judge Chen Huizhen explained the typical cases of providing judicial guarantees for the building of business environment.

This workshop was well received by many business representatives. “Large enterprises have complete set of “equipment,” including legal specialists and professional lawyer teams. However, small innovative start-ups like us will easily get confused in various links when responding to a lawsuit for the first time. It will be very helpful to us to have the opportunity to attend hearings and law lectures of judges at close range. Thank you very much!” An enterprise representative sighed sincerely.

“Whoever enforces the law is responsible for publicizing the law” is a new requirement put forward by the central government to strengthen the publicity on rule of law. For people’s court, the best way to publicize the law is “case study,” i.e. make full use of the cases heard to popularize legal knowledge in a vivid,illustrative and impressive manner. We also hope to let more enterprises learn legal knowledge and raise their consciousness of IPR protection in more ways.” Wang Qiuliang said.

It’s learned that this wasn’t the first case study held by Shanghai Intellectual Property Court. Office of Judge Chen Huizhen, which was set up earlier, has already taken on the task of providing judicial services. By giving lectures on IPR judicial protection, providing professional advice, and inviting enterprises to courts, etc., the Office strives to publicize laws for enterprises at zero distance, provide judicial services for market players and guide them to build risk prevention mechanisms to further create the atmosphere of respecting and protecting intellectual property rights.

In January 2018, Office of Chen Huizhen invited more than 20 representatives from Shanghai Pharmaceutical (Group) Co., Ltd., Shanghai Biochip Corporation and other bio-pharmaceutical companies in Zhangjiang High-Tech Park to attend the hearing about a dispute over invention patent infringement involving pharmaceutical enterprise. After observing the trial, enterprise representatives said that this observation allowed them to have a more intuitive understanding of medicine patent lawsuits and a deeper understanding of how to disclose evidence, how to claim and defend the right in medicine patent cases, which will also help them to strengthen standardized management. It’s hoped that the court will select more typical intellectual property cases and normalize the trial observation in the future.

Statistics show that since its establishment, Office of Judge Chen Huizhen has compiled and issued two common intellectual property casebooks, and paid visits, given lectures and organized enterprise representatives to attend the court sessions for 27 times, with more than 1,500 enterprise representatives participating in these activities.

In the interview, the reporter learned that following the establishment of Office of Judge Chen Huizhen, Shanghai Intellectual Property Court signed a cooperation framework agreement with Pudong Intellectual Property Administration on strengthening IPR protection at the end of 2017 and set up Office of Judge Ding Wenlian, National Adjudication Expert at China (Pudong) Intellectual Property Protection Center. Functions of judges’ offices are constantly strengthened.

“In the future, Shanghai Intellectual Property Court will continue to give full play to the functions of ‘two offices of judges’ and carry out extensive surveys in parks to learn about the actual needs of market players for IPR protection, thereby further providing IPR legal services and enhancing the IPR creation, application, management and protection level of innovating enterprises and start-ups, especially small and medium-sized enterprises.” Wang Qiuliang said.

Protect innovation: build Shanghai into the preferred place for overseas litigants 

“We were impressed by your unbiased respect for the intellectual property rights of multinational corporations and China’s determination to establish specialized intellectual property courts to protect the intellectual property rights.”

In March 2018, Shanghai Intellectual Property Court received a thank-you letter from SAP Inc. (hereinafter referred to as “SAP”). In the letter, Vice President Kraen K. Williams spoke highly of Shanghai Intellectual Property Court.

SAP is a German software company, which filed two lawsuits with Shanghai Intellectual Property Court after discovering that many Chinese training institutions used their copyrighted computer software and training materials in their business activities without its permission. After the trial, Shanghai Intellectual Property Court found that there’re evidences proving the losses suffered by the copyright owner as a result of infringement has exceeded the maximum statutory compensation of RMB 500,000, and therefore, in combination with all other evidences, ordered two defendants to compensate for SAP’s economic losses and reasonable expenses totaling RMB 1.18 million and RMB 1.55 million respectively according to the principle of entire indemnity.

Agent ad litem of SAP said that this was the first lawsuit filed by the Company in China and SAP fully appreciated Shanghai Intellectual Property Court’s equal protection to the intellectual property rights of multinational corporations.

Furthermore, JETRO Shanghai organizes Japanese enterprises to exchange with Shanghai Intellectual Property Court every year. In a recent exchange, Saito Hiroshi, Deputy Director of JETRO Shanghai, said that Shanghai has become one of the preferred places for Japanese enterprises to file intellectual property lawsuits in China.

Why is Shanghai Intellectual Property Court favored by overseas parties and international intellectual property organizations?

Shanghai Intellectual Property Court said that in response to the proposal of CPC Shanghai Municipal Committee to make Shanghai one of the cities with the most convenient trade and investment, the highest administrative efficiency, the most ideal service management and perfect rule of law system, it has, in recent years, conscientiously implemented the judicial policies of “judicial leadership, strict protection, type-based tactics and harmonious proportion,” made full use of legal rules, increased the infringement damages and insisted on equal protection of Chinese and foreign parties as well as large, medium and small-sized enterprises to spark the innovation vigor of market players in a fair competition environment. The court has been committed to exploring and improving the trial mechanism to enhancing the effectiveness of IPR judicial protection, optimizing the litigation process and continuing to explore and innovate the specialized IPR trial mechanism to enhance the efficiency and effects of IPR protection; and by virtue of information technology and centralized trial of cases, improving the efficiency of routine work.

According to statistics, since the establishment of Shanghai Intellectual Property Court more than three years ago, it has accepted 5,551 civil and administrative IPR cases, and concluded 4,958. Of these, 769 cases were related to foreign countries, Hong Kong, Macao and Taiwan, with 609 concluded. The parties involved came from U.K, France, Germany, Japan, and South Korea totaling more than 20 countries and regions. No foreign-related case was remanded for a new trial or ordered for a retrial.

“Strengthening IPR protection and creating a legalized, international and facilitating business environment is an important symbol of a country’s or a region’s international competitiveness. Shanghai Intellectual Property Court will give full play to the leading role of judicature in IPR protection, adhere to the principle of strict protection and equal protection, and strengthen the reform and innovation in the field of intellectual property adjudication, so as to improve the trial quality and efficiency, building Shanghai into one of the preferred places for filing intellectual property lawsuits.” Wang Qiuliang said.