Strengthen the judicial protection of intellectual property rights and strive to promote the development of new quality productive forces

Zhu Dan

The new quality productivity is the path of innovation that plays a leading role, gets rid of the traditional economic growth mode and the development of productive forces, has the characteristics of high technology, high efficiency and high quality, and conforms to the new development concept of advanced productive forces. Scientific and technological innovation can give birth to new industries, new models and new kinetic energy, and is the core element of the development of new quality productive forces. Since the establishment of the modern intellectual property system, the industrial application of every disruptive scientific and technological innovation achievement in human society has put forward new requirements for the reform of the intellectual property system and new challenges to the judicial protection of intellectual property. The development of new quality productive forces is based on scientific and technological innovation and the protection of intellectual property rights. The protection of intellectual property rights is the protection of innovation and the protection of new quality productivity. At present, the new quality of productivity represented by artificial intelligence, integrated circuits, biomedicine, advanced manufacturing, aerospace, new energy and new materials and other industries has developed rapidly in the world, and at the same time, developed countries are actively adjusting their intellectual property policies and systems, and strive to respond to the new requirements for intellectual property protection put forward by the development of new quality productivity. In order to vigorously promote the development of new quality productive forces in the mainland and serve and guarantee the construction of Chinese-style modernization, it is recommended to strengthen the research, exploration and practice in the following aspects, further strengthen the judicial protection of intellectual property rights, and actively respond to the new needs and challenges raised by the development of new quality productive forces for the judicial protection of intellectual property rights:

1. Actively improve the system and mechanism for the judicial protection of intellectual property rights

1. Establish a national intellectual property court. The National Intellectual Property Court shall be a separate high court with centralized jurisdiction over the appellate cases of technical intellectual property cases concluded by local intellectual property courts and other intermediate courts. The establishment of the National Intellectual Property Court is conducive to further straightening out the relationship between the trial levels of intellectual property cases, enhancing the strength of intellectual property adjudication, unifying the standards of intellectual property adjudication, increasing the support and protection of intellectual property adjudication work from all aspects such as human and financial resources, and promoting the improvement of the quality and efficiency of intellectual property adjudication.

2. Fully implement the "three-in-one" adjudication mechanism for intellectual property rights. In courts with jurisdiction over intellectual property cases, the intellectual property tribunal (if there is no intellectual property tribunal, a tribunal may be appointed) to hear intellectual property civil, administrative and criminal cases in a unified manner, so as to promote the effective connection between intellectual property civil, administrative and criminal procedures, promote the unification of adjudication standards, and improve the quality and efficiency of intellectual property adjudication.

3. Implement a centralized jurisdiction mechanism for intellectual property cases in basic courts. If jurisdiction over IP cases is given to each basic court, each basic court will need to have a certain number of professional IP judges, and many basic courts do not accept a large number of IP cases each year. This will easily lead to the dispersion of intellectual property adjudication forces, which is not conducive to the training and training of professional intellectual property judges, and is not conducive to improving the quality and efficiency of adjudication. Therefore, it is necessary to implement cross-regional centralized designation of jurisdiction for intellectual property cases in basic courts, that is, the higher courts will designate the jurisdiction of intellectual property cases within the jurisdiction of several adjacent basic courts to one of the courts, so as to give full play to the economies of scale of centralized jurisdiction over intellectual property cases and promote the improvement of the quality and efficiency of intellectual property adjudication.

4. Enact the Law on Special Procedures for Intellectual Property Litigation. Through the enactment of the Law on Special Procedures for Intellectual Property Litigation, the jurisdictional system, evidence system, and trial procedures for intellectual property cases will be further improved, and the effective connection between civil, administrative and criminal procedures for intellectual property rights will be further promoted. It is necessary to further improve the jurisdiction system for foreign-related intellectual property cases, fully exercise the jurisdiction of foreign-related intellectual property cases, promote the active participation of mainland courts in international governance in the field of intellectual property, and enhance the international influence and authority of mainland intellectual property justice.

2. Strengthen the application of judicial protection measures for intellectual property rights in accordance with law

1. Actively apply temporary judicial protection measures in accordance with law. If the right holder provides reasonably obtainable evidence before or during the civil litigation and preliminarily proves that its rights are being infringed or are about to be infringed, and that the infringement will cause irreparable damage to the legitimate rights and interests of the right holder if the infringement is not stopped in a timely manner, the court shall, after the right holder provides the corresponding guarantee, directly order the other party to immediately stop the infringement of intellectual property rights and immediately enforce it, without asking the opinions of the other party.

2. Reduce the burden of civil proof on rights holders in accordance with law. In civil infringement litigation of intellectual property rights, rules of evidence such as disclosure of evidence, obstruction of evidence, and shifting of the burden of proof should be actively applied to reduce the burden of proof on rights holders in accordance with the law. For example, if the accused infringer is in possession and control of the relevant evidence, the accused infringer shall be ordered to disclose and provide relevant evidence to the court, and if the accused infringer refuses to disclose or provide it, the rule of evidence obstruction shall be applied and a judgment unfavorable to the accused infringer shall be made. In addition, if the right holder has made reasonable efforts to collect and provide evidence and there is a high probability that the facts to be proved are preliminarily proved, if the accused infringer still denies the facts to be proved, the court should actively apply the rules of shifting the burden of proof and require the accused infringer to provide contrary evidence to prove that the facts to be proved are not established, so as to reduce the burden of proof on the right holder.

3. Actively apply the punitive damages system in accordance with the law. The punitive damages system cannot simply be refused because it is difficult to ascertain the basis for calculating the base amount of punitive damages such as actual losses, profits from infringement, royalties, etc. In the circumstance that it is difficult to accurately ascertain the basis for calculating the punitive damages as described above, the basis of the case and relevant evidence shall be determined by applying a discretionary method to the extent possible, so as to increase the application of punitive damages for intellectual property rights. In addition, it is suggested to return to the legislative origin of the punitive damages system, and to take the "seriousness" of the infringement as an important factor in considering the amount of punitive damages, rather than the "seriousness" as a prerequisite for the application of punitive damages.

4. Increase the force of criminal crackdowns on intellectual property crimes in accordance with law. Resolutely abandon the erroneous practice of substituting civil compensation for punishment and exempting punishment with administrative punishment. Criminal crackdowns on criminal acts infringing on intellectual property rights shall be increased in accordance with law. While strictly applying principal penalties such as fixed-term imprisonment and short-term detention to lawfully deprive criminals of serious infringement of intellectual property rights, they also actively apply additional penalties such as fines to lawfully deprive criminals of their economic ability to commit crimes of infringing intellectual property rights again. Therefore, in the criminal litigation of intellectual property rights, it is necessary to be cautious in the criminal compliance policy of the enterprise involved in the case, so as not to contradict the concept and policy of "strict protection" of intellectual property rights.

3. Strengthen the training of professional judges for intellectual property adjudication

1. Strengthen political construction and build political loyalty. We must persist in casting our souls with Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, firmly support the "two establishments", and resolutely achieve the "two safeguards". It is necessary to thoroughly study and implement Xi Jinping Thought on the Rule of Law and the spirit of General Secretary Xi Jinping's important instructions on intellectual property work. Adhere to the Party's absolute leadership over the work of the courts, strengthen the people's position, and strive to achieve the organic unity of the political, social and legal effects of intellectual property adjudication work.

2. Optimize the professional structure and expand the ability and quality. In view of the characteristics of intellectual property adjudication work involving professional fields such as science and technology, literature and art, economy and society, it is necessary to actively recruit outstanding talents with both legal and non-legal backgrounds, especially science and engineering backgrounds, to engage in intellectual property adjudication work, continuously optimize the professional structure of the intellectual property adjudication team, and promote the improvement of the ability and quality of the intellectual property adjudication team.

3. Strengthen professional training and enhance judicial capacity. Intellectual property adjudication work is highly specialized, there are many new situations and new problems, and the degree of internationalization is relatively high, and the relevant laws and regulations are adjusted quickly. It is necessary to continuously strengthen the professional theoretical training and judicial skills training of the intellectual property judges, promote the improvement of judicial capacity, and strive to build a team of judges who are competent for the adjudication of intellectual property rights in the new era and new journey.

4. Strengthen the construction of a clean government and ensure that the judiciary is clean and honest. It is necessary to vigorously strengthen the study and education of party discipline in the ranks of intellectual property judges, so that they can study, know, understand, and abide by discipline, firmly establish a sense of discipline and rules, and resolutely not touch the bottom line and red line of judicial integrity. It is necessary to strengthen the construction of judicial style, do justice fairly, for the people, and actively administer justice, and strive to make the people feel fairness and justice in every judicial case.

4. Strengthen foreign exchanges on judicial protection of intellectual property rights

1. Give full play to the role of the international exchange base (Shanghai) for the judicial protection of intellectual property rights in Chinese courts. In 2014, the Supreme People's Court established the "International Exchange (Shanghai) Base for Judicial Protection of Intellectual Property Rights in Chinese Courts" in the Shanghai High People's Court. It is necessary to actively rely on the base to hold international seminars and foreign-related intellectual property adjudication training courses, further broaden the international vision of intellectual property judges, enhance the adjudication ability of intellectual property judges, and enhance the international image of China's judicial protection of intellectual property rights.

2. Vigorously strengthen cooperation with the World Intellectual Property Organization. It is necessary to deeply participate in the global intellectual property governance under the framework of the World Intellectual Property Organization, actively strengthen the work docking with the Shanghai Center for Arbitration and Mediation of the World Intellectual Property Organization, promote the diversified resolution of foreign-related intellectual property disputes, and enhance the ability of Chinese courts to participate in global intellectual property governance.

3. Vigorously strengthen international exchanges and cooperation on the judicial protection of intellectual property rights with the countries that jointly build the Belt and Road. It is necessary to actively carry out exchanges and cooperation in the field of intellectual property justice with the countries that jointly build the "Belt and Road", including sending intellectual property judges to study and exchange with each other, holding international seminars, etc., and strive to provide strong judicial services and judicial guarantees for the joint construction of the "Belt and Road".

4. Actively select outstanding intellectual property judges to go abroad for exchange and discussion. It is necessary to actively select outstanding intellectual property judges who are politically strong, professionally proficient, have a hard work style, and are good at foreign languages to attend seminars, participate in business training, lecture visits, etc., so as to not only send a good voice and tell a good story of China's judicial protection of intellectual property rights, but also promote the improvement of China's ability to protect intellectual property rights, and also promote the enhancement of the international influence and authority of China's judicial protection of intellectual property rights.

(The author is Secretary of the Party Leadership Group and President of Shanghai Pudong New Area People's Court)