4.2.3 Special provisions on jurisdiction
4.2.3.1 Jurisdiction over patent-related civil cases by court level
According to Article 20 paragraph 1 of the Interpretation of the Civil Procedure Law, patent dispute cases come under the jurisdiction of intellectual property courts or intermediate people’s courts and of primary people’s courts determined by the Supreme People’s Court.
In provinces, municipalities directly under the central government, and autonomous regions that have established intellectual property courts or intellectual property tribunals, patent-related civil cases of first instance come under the centralized jurisdiction of the relevant intellectual property courts or tribunals. In other provinces, municipalities and autonomous regions, patent-related civil cases of first instance come under the jurisdiction of the intermediate people’s courts that originally held the jurisdiction.
On October 26, 2018, the Sixth Session of the 13th NPC Standing Committee deliberated and adopted the Decision on the Litigation of Intellectual Property Cases, which came into effect on January 1, 2019. This decision states that the Supreme People’s Court shall uniformly hear civil and administrative appeal cases involving patents and other intellectual property rights involving professional technologies.
The Provisions on the Intellectual Property Court also came into effect on January 1, 2019. Article 1 of this judicial interpretation stipulates that the Supreme People’s Court shall establish the Intellectual Property Court to hear cases on appeal over patent and other intellectual property rights involving professional technologies. Article 2 of the provisions stipulates the category of cases to be heard by the Intellectual Property Court of the Supreme People’s Court:
- 1. appeal cases filed because the interested parties disagree with the judgments and rulings made by high people’s courts, intellectual property courts or intermediate people’s courts on first-instance civil cases involving any invention patents, utility models, new plant varieties, layout designs of integrated circuits, technical secrets, computer software or monopoly;
- 2. appeal cases filed because the interested parties disagree with the judgments and rulings made by the Beijing Intellectual Property Court on first-instance administrative cases involving the granting and confirmation of any invention patents, utility models, design patents, new plant varieties or layout designs of integrated circuits;
- 3. appeal cases filed because the interested parties disagree with the judgments and rulings made by high people’s courts, intellectual property courts or intermediate people’s courts on first-instance administrative cases involving any invention patents, utility models, design patents, new plant varieties, layout designs of integrated circuits, technical secrets, computer software or administrative penalty for monopoly;
- 4. nationwide significant and complex civil and administrative cases of first instance identified in Items 1, 2 or 3;
- 5. petitions for retrial, protests, retrials and so on in accordance with the law where adjudication supervision procedures are applicable with respect to legally effective judgments, rulings or written mediation statements of first-instance cases identified in Items 1, 2 or 3;
- 6. cases of objection to jurisdiction, petitions for reconsideration of penalty or detention decisions, or petitions for extension of a trial term with regard to first-instance cases identified in Items 1, 2 or 3; and
- 7. other cases that, in the opinion of the Supreme People’s Court, should be heard by the Intellectual Property Court.
If a party disagrees with the second-instance judgment or ruling made by the Intellectual Property Court of the Supreme People’s Court on a patent-related civil case, it may file a petition for retrial with the Supreme People’s Court in accordance with the laws.
With respect to civil cases involving design patents, according to Article 164 of the Civil Procedure Law, if a party disagrees with a first-instance judgment or ruling made by a local people’s court, the party has the right to file an appeal with a superior people’s court. A party that considers a second-instance judgment or ruling to be wrong may file a petition for retrial in accordance with Article 199 of the Civil Procedure Law.
4.2.3.2 Territorial jurisdiction over some types of patent-related civil cases
4.2.3.2.1 Disputes over patent contracts
The territorial jurisdiction over civil cases of patent contract disputes is determined according to Articles 23 and 34 of the Civil Procedure Law. Such cases may come under the jurisdiction of the people’s court at the place where the defendant is domiciled or where the contract is performed; or the parties may agree in writing to be subject to the jurisdiction of the people’s court at the place having a connection with the dispute, such as where the defendant is domiciled, where the contract is performed, where the contract is signed, where the plaintiff is domiciled, where the subject matter is located and so on, provided that such an agreement does not violate the provisions of the Civil Procedure Law regarding jurisdiction by court level and exclusive jurisdiction.
4.2.3.2.2 Disputes over patent ownership and over patent infringement
For disputes over ownership of patent application rights and patent rights, territorial jurisdiction is determined after identifying whether the cause of the ownership disputes is a contractual relationship or acts of infringement.
The territorial jurisdiction of lawsuits filed due to acts of patent infringement is determined according to Articles 2–3 of the Provisions on the Trial of Patent Disputes:
Article 2. These lawsuits shall come under the jurisdiction of the people’s court at the place where the acts of infringement are committed or where the defendant is domiciled.
The place where the acts of infringement are committed include: the place where acts of manufacturing, using, offering for sale, selling or importing the products alleged to have infringed the invention patent and/or utility model are performed; the place where the act of using the patented process is performed, and the place where the acts of manufacturing, using, offering for sale, selling or importing of the products directly obtained by the patented process are performed; the place where the acts of manufacturing, using, offering for sale, selling or importing the products incorporating the design patents are performed; the place where the act of counterfeiting others’ patents is performed; and the place where the result of the said acts of patent infringement occurred.
Article 3. If the plaintiff only sues the manufacturer of the alleged infringing product but does not sue the seller thereof, and the infringing product is manufactured and sold in different places, then the people’s court at the place where the infringing product is manufactured may have jurisdiction; if the plaintiff files a lawsuit with the manufacturer and the seller as co-defendants, the people’s court at the place where the infringing product is sold may have jurisdiction.
If the seller is a branch or subsidiary of the manufacturer, and the plaintiff files a lawsuit against the manufacturer for its acts of manufacturing and selling the infringing product, the people’s court at the place where the infringing product is sold may have jurisdiction.
4.2.3.2.3 Disputes over whether the technical solution falls within the protection scope of pharmaceutical product patent rights
In accordance with Article 1 of the Provisions on the Patent Rights of Drugs, the party concerned may file a lawsuit in accordance with Article 76 of the Patent Law requesting a judgment on whether the technical solution related to the pharmaceutical product for which registration is applied falls within the protection scope of any pharmaceutical product patent right owned by others. This type of lawsuit comes under the jurisdiction of the Beijing Intellectual Property Court.