Vivien Chan & Co - China
For the last few years, the Chinese government and the China National IP Administration (CNIPA) have been promoting the enforcement of patent rights through administrative actions. In November 2019 CNIPA published a notice announcing the launch of a project to refine the system of handling administrative complaints with regard to patent infringement. CNIPA aims to enhance the following aspects:
- the administrative framework:
- by regularly issuing policies, determinations and interpretations to strengthen and standardise administrative enforcement measure procedures at a local level;
- ease of access:
- by encouraging authorities to step up their efforts and broaden the scope in promoting administrative measure as a means for dispute resolution;
- innovative protocol:
- by simplifying and optimising case management procedures; and
- establishing mechanisms for hearings in writing;
- communication and coordination:
- by refining the workflow for cases under mediation and administrative investigation; and
- establishing a system of recordal of undisputed facts to improve efficiency of ruling of the same case by different adjudicating bodies;
- case management structure:
- by establishing a hierarchical structure for personnel and institutions to distribute cases of varying significance;
- capability and infrastructure:
- by forming professional teams to handle administrative decisions; and
- training existing adjudicators and increasing the qualification threshold for this profession.
In early March 2020 CNIPA announced that pilot sites, namely Beijing, Hebei, Shanghai, Jiangsu, Zhejiang, Hubei, Guangdong and Shenzhen, will be the first to carry out and demonstrate the newly proposed model for handling administrative complaints and must commit to the project for two years. Based on their results and feedback, CNIPA will determine the second wave of sites and expand the coverage of the project to increase its guidance of and support for the local authorities throughout the country and improve coordination, evaluation and inspection processes.
Previously, an administrative complaint was probably not a rights holder’s preferred option for dealing with patent infringement issues due to the uncertainties in terms of the procedure and time required. While it remains to be seen how the different sites will implement the refined mechanism in practice, CNIPA’s demonstrated commitment to promoting the patent administrative complaint process is a positive move to strengthen the effectiveness of patent rights protection throughout China.