May 18, 2018 People's Daily        Page 16

(Reporter Hao Hong) In the past three years, a new type of profession has emerged in Beijing, Shanghaiand Guangzhou almost simultaneously, that istechnology investigation officer, a group of experts and scholars from universities, research institutions and national intellectual property right organizations. They are employed as “technology translators” for judges by theintellectual property courts of the three metropolises.

The profession of technology investigation officer was born almost at the same timeasintellectual property court. On August 31, 2014, the Standing Committee of the National People's Congress made the decision to establish Intellectual Property Court in Beijing, Shanghai, and Guangzhou. At the end of that year, intellectual property courts were established and began to operate in those three cities in succession.Meanwhile, the Supreme People's Court issued Interim Provisions on Several Issues Concerning the Participation of Technology Investigation Officers of Intellectual Property Courts in Litigation Activitiesto furtherexplorethis system.

As judicial assistant personnel,investigation officers undertake the tasks of reading case files and participating in trials as well as execution of preservation, and play a key role incracking technical codes of intellectual property cases.

They participate in the trial of intellectual property cases and exerta silent but transforming influence on their industry, awakening people’sawareness of intellectual property protection.

“Unlocking” complex technical facts

“I really couldn’t figure out how to tackle the difficulty in technology comparison, soIasked them to send a technology investigation officer.”

A silver and orange bike was in the middle of a court.

On the benchwere the judges and jurors. Besides the seats for thecourt clerk and the assistant judge, there was also a seat forthe technology investigator below the bench.

Wang Qiuliang, the president of Shanghai Intellectual Property Court, was the chief judge, and two of the three judges were members of the Judicial Committee; Zhou Tao, the technical director of China Telecom's Shanghai West District Telecommunication Bureau, wassitting at theseat forthe technology investigation officer.

“It was last summerwhen the case of Mobike's patent infringement case was heard. I sat on the seat forthe technical investigation officer. After the plaintiff and defendant made their statements, the chief judge firstly turned to me and asked if I hadsome questions,” Zhou Tao recalled in the interviewon May 9.

Two years ago, Zhou Tao was engaged as a technology investigation officer by Shanghai Intellectual Property Court. Back atthat time, she was also the chief engineer of China Telecom Shanghai Research Institute. Among all the cases she participated in the past two years, what impressed Zhou Tao the most was the Mobike case.

Mobike has been involved in numerouspatent disputes since March last year. The case triedby Shanghai Intellectual Property Court involved the patent of “unlocking byscanning code”. The plaintiff, Mr. Hu, alleged that the technical features of Mobike's control system for bike lock were exactly the same as those recorded in the invention patent he enjoyed. Mobikeinfringed onhis patent right.

“There aretwo technical difficulties in the trial of this case,” Chief Judge Shang Jiangang said.

Firstly, the subject of the patent involved was “an electric vehicle control system and its operation method”.Could it be only applied to electric vehicles? Would it constitute infringement if it was applied to bikes?

Secondly, the involved patent technology for unlocking was a two-party interaction, that is, an interaction between the lock on the electric vehicle and the matching QR code; The Mobike unlocking system accused of infringement used a three-party interaction, that is, an interaction among locks of bikes, mobile phones and cloud servers. Could it be taken for granted that three-party interaction didn’t equate to two-party interaction?

Confronted with these two tricky issues, Shang Jiangang and his colleagues were at a loss, “I knew whatthe problem was, but I really couldn’t figure out how to tackle the difficulty in technology comparison, so I asked them to send a technology investigation officer”

“After reading the case file carefully, I found that the term 'electrical connection' in the patent expression was pretty vaguebut very crucial,” Zhou Tao said, “If the 'electrical connection' in the plaintiff's patent includes wireless communication connection, the protection scope of his patent will be quite wide; if the 'electrical connection' is only limited to electronic circuit connection, then the scope will be relatively limited.”

Drawing uponhisexperience of more than 20 years in the communication industry, Zhou Tao believedthat the communication industry generally does not use the term “electrical connection” to refer to “wireless communication signal connection.”To be on the safe side, she also searched authoritative literature database with the keywordof “electrical connection”. Of the 2,152 literature, more than half of the literature belonged to the disciplines ofpower industry, industrial economy, aerospace scienceand engineering. Among the 166 professional radio electronics literature that had been found, Zhou Tao went through the top ten literature cited, and discovered that the “electrical connection” used in those literatureall referred to the physical contact connection ofelectronic circuits or antenna devices.

During the trial, both the plaintiff and defendant demonstrated their respective technical features with PPT, such as QR code, decoder, memory, comparator and so on. Confronted with an avalanche of professional terms, Zhou Taosat calmly on the seat forthe technology investigation officer and took notes from time to time. When it was Zhou Tao’s turn to ask questions, she asked both the plaintiff and defendant a question: was “electric connection” a wireless connection or a physical connection? What is the covering scope for this term? After the trial, Zhou Tao submitted a detailed technical review opinion to the judge.

“This opinion deepened our understanding of this case,” Said Shang Jiangang. To put it simply, the plaintiff's technology designed the key of an electric vehicle into a QR Code that can be identified by the camera on the electric vehicle. If the QR code was correct, it could be unlocked. Essentially, it was “opening different locks with different keys” without connection through wireless communication signal. The defendant's technology was a technical solution of three-party interaction. The QR code of a Mobike bicycle is an“ID card” that connects consumers and cloud servers through Internet to obtain decoding authorization. Soon, the collegiate bench made the first-instance judgment.

It took only 6 months from filing to conclusion.

Shanghai Intellectual Property Court has 13 off-staff technology investigation officers includingZhou Tao. They come from state organs, industry associations, universities and colleges, and research institutes, and have long been engaged in communication, chemical, machinery, electronics and other fields. Now, they use their own expertise to “unlock” the obscure and elusive technical facts in intellectual property cases.

A reform of trial in terms ofquality and efficiency

The average trial periodis shortened by 61 days for those cases participated by technology investigation officers.

“Before the technology investigation officer system was established, judges could also find relevant experts from the technical expert pool for technical advice,”SaidWu Denglou, the head of technology investigation office of the Shanghai Intellectual Property Court. However, with the fast growing number of technology-related cases, technical fact-finding has posed greater challenges for judges.

Technical consultation, technical appraisal... these technical fact-finding processes are quite complex and it takestwo or three years to conclude a case, and numerous new technologies become outdatedduring thelong lawsuits. Sometimes, a litigant toughs it out to win the case,but ends up in losingthe market.

How to find a way out of the dilemma of“fewer people but more cases”?If judges can avoid their disadvantages in technology and gettechnical support, they can focustheir time and energy on the application of law to ensure fair and efficient trial of technical cases. Drawing on relevant systems in Japan, Germany, Korea and Taiwan, China and in light of China's national conditions, the system of technology investigation officer emerged as the times required.

According to Wu Denglou, technology investigation officers can be staff members or off-staff members, and most of them are part-timestaff or staff of exchange programs. “Shanghai Intellectual Property Court employs a combination of exchange and part-time staff. Technology investigation officers for exchange are dispatchedto courts by state organs, trade associations, colleges and universities, research institutions, enterprises and institutions; part-time technology investigation officers are selected and employed from technical staff in related fields on the recommendation of their work unitsor themselves.”

On March 16, 2016, Shanghai Intellectual Property Court inaugurated a technology investigation office. The first batch of 11 technology investigation officers were all exchange and part-time personnel. Two of themareregular technology investigation officers of the court, primarily responsible for technical fact-finding involved in computer software and patent cases.

Their tasks include reviewinglitigation documents and evidence materials, and clarifyingthe dispute focus on technical facts; takingpart in investigation, evidence collection, inspection and preservation; participating inquiries, hearing, pretrial meeting, and trial activity; putting forward technical review opinion and attendingthe collegial panel's deliberation…

“We have a set of strict workflowwhich is very rigorous and inflexible, but acts as a guarantee forthe objectivity and neutrality of technical investigation officers,”said Wang Chuanji, a technical investigation officer. Majoring in computer, Wang Chuanji is a research assistant of The Third Research Institute of Ministry of Public Security. He was employed by Shanghai Intellectual Property Court in March 2017 to serve as a regular technical investigation officer.

Generally, a technical investigation officerworks with files and technical terms in daily work, but they may sometimes find themselves insituations requiring wisdom and bravery.

Wang Chuanji once participated in an evidence preservation task of asoftware patent infringement case.

“It was about 10 o'clock when we arrived at the defendant company that day. We were kept out in a polite way,”recalled Wang Chuanji. We could not start the evidence preservation until the company's General Manager appeared two hours later.

When the evidence preservation began, Wang Chuanjistarted up the first computer, but foundthat no infringingsoftware was installed onit. There were over 200 computers, and they were given only five or six minutes to search each one of them.

As the clock ticked away, Wang Chuanji managed to compose himself: why not try an indirect way since it didn’t work out. Before being informed that he was going toparticipate on-site evidence preservation, he had tried simulating the installation and uninstallation of the infringing software onhis own computer, and he had a general idea about where there might be traces left after the software was uninstalled.

Finally, he found some log filesthatthe infringingsoftware left in the computer's cache files, and discovered that the software was uninstalled just about one hour ago; at the same time, he also found some proof inthe regeditof the computer that testified to the previous proof. Relevant traces were found nearly on all the sampling computers except two ones. The whole evidence preservation process was shot and recorded by the courtto fix the evidence. It only took two hours to complete the whole evidence preservation and it ended in great success.

Judge He Yuan once tried a case of software infringement. Two software feature similar functions and modules but are in different programming languages: one uses C#, and the otherone uses JAVA. Even thoughthey are totally differentfrom the aspect of programming languages, they need tobe verified through technical means, so as toprovideconvincing evidence for reference in the final judgment.

Judges used to trythis kind of cases by resorting to technical appraisal, but it takesat least 3 months for appraisal, and it may incur a high cost, resulting in litigation exhaustion for both the plaintiff and defendant.

The technical investigation office appointed technical investigation officer Zhang Ying to participate in the case trial. Through numeroustimes of evidence exchanges and trials, He Yuan, Zhang Ying, the plaintiff, the litigation entrusted agent of the defendant and relevant technicians installed and debugged the source codes, target codes and database structures of the two software programs. Based on Zhang Ying's technical review comments, He Yuan gave cautious legal judgment. It only took half a year to close the trial of this complicated caseinvolving professional technology.

As is shown by the statistics of Shanghai Intellectual Property Court, it takes 117 days on average to close the trial of a case with the participation of a technical investigation officer; and it takes 178 days on average to close the trial of a case with the participation of appraisalagencies. With technical investigation officers participating in the trial, the time of closing the trial of the case on average is shortenedby61 days. Up to now, not a single case has been overruled or remanded by a superior court due to the technical review comments provided by technical investigation officers.

An attempt at professionalization

“Whichever technical fact-findingmechanism is more direct, scientific and effective, we will adopt it.”

In July 2017, a job ad posted by Nanjing Intermediate People's Court attractedthe attention of the legal industry. The Court decided to employ 6contract technical investigation officers from the society.

According to the job ad, the applicants shall not be older than 45, and shall have a full time bachelor degree or abovein science and engineering majors, experiences inrelevant technical field, and academic or technical expertise required by the position. The majorscovered computer, pharmacy, electronic information, machinery, etc., and the annual salary wasfrom RMB 200,000 yuan to RMB 300,000. The local media exclaimed,“The salary is even higher than that of the president.”Following the event for half a month, the media foundthat the 6 positions attracted 264 applicants, meaning there were 44 applicants on average for every position, and over 90% of the applicants had obtained a master degree.

Through a careful and strict screening process, 6 applicants signed contracts with Nanjing Intermediate People's Court formallyon November 15 of the same year, and became the first batchof full time technical investigation officers under the system of contractualemployment in China.

“This is an active attempt,” said Wu Denglou. He disclosed that Shanghai has also been considering employing technical investigation officers under the system of contractual employment. “The advantages of employing part-time or exchanging technical investigation officers lie in that we could invite leading experts in the industry who are in possession with cutting-edge technologies or are front-line operators in intellectual property-related departments. However, there are some disadvantages, too. They all undertake important managerial or technical research work at their own positions, so they are not available all the time.”

From the perspective of human resources deployment, the 13 technical investigation officers currently servingin Shanghai Intellectual Property Court are far fromenough. Having been in the court for over a year, Wang Chuanji has already been engaged in seventy or eighty cases. “Cases come one after another continually, and I often follow more than 20 cases at the same time.”

However, Wang Chuanji hasn't considered becominga full-time technical investigation officer. “Technology has been changingrapidly,and if you work in your own technical industry, you can learn and follow the technical updatesall the time. If you are too busy with handling cases all day, you will have much fewer opportunities to learn about new technologies. Without a solid technical knowledge reserve,how could you expect to handle your own work well?”

Technical investigation systemstill has a long way to go before realizing comprehensive professionalization, and it still has a lot of room for improvement. For example, the publicity of technical review comments to an appropriate extent. In theory, the technical review comments submitted by technical investigation officers only serve as references for judges. However, in practice, written technical review comments are almost all accepted by judges.Given that technical review comments are highly likely to be accepted by judges, relevant staff in Shanghai Intellectual Property Court areconsidering whether technical review comments shouldbe made knownto either party to an appropriate extent so as to alloweither party to express interrogation opinions and realize the check and balance of legal proceedings.

Professionalizationdoesn't meanthe system of technical investigation officersis the solution to everything. “For the trial of a case to be fair and efficient, a set of multiple technical fact discovery mechanismsarerequired. Whether it's technical consultation, expert jury, technical investigationor technical appraisal, whichever technical fact discovery mechanism is more direct, scientific and effective, we will adopt it,”said Shang Jiangang. By the end of last year, Shang Jiangang closed the trial of the patent infringement case with Sogou litigating Baidu Input. He tried all the four kinds of mechanism one after another at that trial.

Since October 2015, Sogou appealed to Beijing Intellectual Property Court, Shanghai Intellectual Property Court and Shanghai High People's Court respectively for patent infringement, accused “Baidu Input”, a product of Baidu, of infringingupon 17 intellectual property rights of Sogou, with the total object of litigation amounting up to RMB 260 million yuan.

This case had hugesocial influences, so the courts were extremely cautious. Firstly, a multiple of technical hearings were arranged concentrating on the Plaintiff's intellectual propertiesand technical features and various experiments and tests on the input software of the Defendant were conducted in court; then, to ensure comprehensiveinvestigation of facts, the appraisalprocedure was selected; in addition to appraisal, technical investigation officers were invited to inspect the source program of the Defendant in court.

Finally, after five rounds of hearings and sittings, appraisals and inspections in court, the first instance trial of the case closed on December 29, 2017 after two years of arduous work, and Sogou lost the case.

“We want to obtainthe technical scheme of the accused and itinvolvesneutrality of athird party, so it’s much betterif a neutral third party, that is an appraisalagency, conducts the appraisal. When it comes to the inspection of the source program of the Defendant, the participation of a technical investigation officer canprotect the technical secret properly,”said Shang Jiangang. Theapplication of different technical fact–finding means is to ultimately maximize justice and fairness.

Awakeningthe awareness of intellectual property protection

The influence of the technical investigation officer system has gone beyondthe judicial field.

Before becoming a technical investigation officer, Yang Yang, a researcher of Shanghai Institute of Microsystem and Information Technology Chinese Academy of Sciences, once participatedthe trial of anintellectual property rightcase that aroused great sensation-the one with NOKIA accusing Huaqin Telecom Technology Co., Ltd.of infringing on its patent rights.

In 2010, NOKIA complainedthat Huaqin Telecom Technology Co., Ltd. used 8 patents in its manufactured and sold products without obtaining patent licensing, and claimed for a compensation upto RMB 90 million yuan. This case lasts for more than 8 years, and hasn't been closed until now. It is a software patent case with significant influence in the legal industry of China.

As the technical consultant of Huaqin Company, the research team includingYang Yang as a member assisted Huaqin's lawyer team in sorting out technical issues and arguing strongly in court. In the end, four of the eight patents alleged by Nokia were finally recognized as invalid patents, and Nokia withdrew the lawsuit; the claim for onepatent was rejected because the scope of protection required cannot be determined; among the remaining three patent litigations, Huaqin won two and lostone at the first instance. So far, the case is still at the final stage and has not been concluded.

As is shown in a reportfrom the “2017 IEEE (International Institute of Electrical and Electronics Engineers) Intellectual Property Forum”provided by Yang Yang, China's wireless communication industry is faced with severe challenges in terms of patent protection. “For a domestic smartphone that sells for $150, the following patent fees need to be paid: Qualcomm charges 4% to 5% of the price of the mobile phone; Ericsson charges 3% of that; Nokia charges 2% to 3%; Microsoft has begun to levy patent license fees on Android devices for about $5 for each smartphone and about $10 for each tablet, and that doesn’t include legal costs, cross-licensing and other expenses.”

“If anenterprise wants to develop, it can not ignore the problem of intellectual property. The problem exists no matter you face it or not,” Yang Yang said. After being hired as a technical investigator, he once participated in a patent case. “A large company sued a small one because the former discovered the potential of the latter and wanted to block the listing of it through litigation. Despite a lot of grievances and dissatisfaction, the small company does have its weakness regarding intellectual property rights, and it is only a matter of time to be given a hard punch.”

The impact of the technical investigator system has gone beyondthe judicial field.

Realizingthe power of intellectual property, Yang Yang and his team put their focus on the distribution of patents in the field of intellectual property. “A project has many research directions. The intellectual property layouts of different enterprises vary from each other. We will draw a patent map and identifythe 'landmines' in the research field to avoid them; and we can also identifythe weak links of intellectual property and conduct targeted research.”Due to their efforts in intellectual property protection, Shanghai Wireless Communication Research Center hosted by Yang Yang has developed into aShanghai Intellectual Property Demonstration Base and Demonstration Center.

Yang Yang has stepped down from the role of a technical investigator and devoted more time and energy to scientific research and intellectual property protection, while Chen Li just took over Yang`s place and will work as an exchange technical investigator at Shanghai Intellectual Property Court in the following year.

Chen Li, who is from the Optoelectronics Department of the Patent Office of the State Intellectual Property Office, joined the team of technical investigators of Shanghai Intellectual Property Court in March this year. He has already participated in nine casesalthough he has been  in the position for only two months. In adispute case involving infringementon the inventionpatent right of a printer, he had to read through 240 pages of patent claims, specifications and attached drawings with more than a dozen of ways of implementation. Chen Li spenta whole week onsorting out the technical key points in these patent documents and submitted them to the undertookjudge.

When sorting out the technical documents of these cases, Chen Li, who has 15 years of experience in invention patent investigation, also reflectson these cases. “From the perspective of the approvers, the authorization scope of somepatents isalready made clear. However,when they are put into practice subsequently, it turns out that the definition ofthe scope can still provoke controversy. In some casesinvolving patent infringement, the dispute focus lies in the interpretation of a single word. It calls for much deliberation when we review them. We shouldguide the patent applicant to write their patent applicationsbetter, and specify their rights in a more stable and unambiguous way, so that patent rights can get better protection.”