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Abstract

The intellectual property (“IP”) judicial system comprises two parts: IP judicial organization and IP judicial mechanism. China’s IP judicial system reform should be carried along with the construction of specialized IP courts, aiming to establish a specialized IP judicial system. Such a system contains five elements. First, the nation-wide specialized IP courts are both courts of first instance and of appeal, which is a mode of “first instance + appeal”. Meanwhile, a state-level high court or an IP circuit court of the Supreme People’s Court (“the Supreme Court”) should be established. Second, IP courts should not be set up everywhere, instead, they should be set up in 10- 13 central cities, supplemented with detached tribunals. Third, the judicial mechanism in the IP courts should be “3-in-1”, in which civil, administrative and criminal suits are heard by one court. Fourth, the manner of reasoning inherited from administrative authority principles of the civil law system should be avoided, and judicial organs should be given the authority to make substantial judgments on the validity of IP. Finally, in technical cases, a multiidentification mechanism for technical facts should be set up, by establishing systems such as technical investigators, expert consultation, expert juries, and judicial appraisal. Thus, an overarching IP judicial system will be formed, which will separate IP trials from others and strengthen the professional traits of IP trails. Such a judicial system is an optimized choice conforming to the construction of an innovative country and is sufficient for China to present a picture of “strong judicial protection” of IP to the world.

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