Recently, the Office of the State Intellectual Property Office and the General Office of the Ministry of Justice issued a notice on promoting the second batch of typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country. On the basis of summary, submission and recommendation from various places, the State Intellectual Property Office, together with the Ministry of Justice, selected a new batch of 13 typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country. We now recommend 13 typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country, including "Beijing's construction of an administrative adjudication model that combines pre-trial inquiries, written hearings, and in-court adjudication".

Notice of the Office of the State Intellectual Property Office and the General Office of the Ministry of Justice on promoting the second batch of typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country

Intellectual Property Offices and Justice Departments (bureaus) of all provinces, autonomous regions, municipalities directly under the Central Government, cities under separate state planning, sub-provincial cities, and Xinjiang Production and Construction Corps:

Administrative protection is an important channel for my country’s intellectual property protection system, and administrative adjudication is an important form and important content of administrative protection of intellectual property rights. The Party Central Committee and the State Council attach great importance to administrative adjudication in the field of intellectual property rights and have made a series of important arrangements to strengthen and standardize administrative adjudication of intellectual property infringement disputes. The "Opinions on Improving the Administrative Adjudication System and Strengthening Administrative Adjudication Work" clearly requires that administrative adjudication work be focused on intellectual property infringement disputes and compensation disputes. The "Outline for Building a Powerful Nation on Intellectual Property (2021-2035)" and the "14th Five-Year Plan for National Intellectual Property Protection and Utilization Plan" have successively proposed to give full play to the role of the administrative adjudication system for patent infringement disputes, increase the enforcement of administrative adjudication, and strengthen the administration of infringement disputes. ruling. The State Intellectual Property Office and the Ministry of Justice conscientiously implement the decisions and arrangements of the Party Central Committee and the State Council, perform the functions assigned by the central government to coordinate and promote administrative adjudication of intellectual property infringement disputes, and do a good job in the top-level design, system improvement, overall planning, and pilot construction of administrative adjudication in the field of intellectual property rights. and other work to improve the modernization of the administrative adjudication management system and governance capabilities for intellectual property infringement disputes.

In accordance with deployment requirements, various localities regard administrative adjudication of intellectual property infringement disputes as an important means of strengthening administrative protection of intellectual property rights and optimizing the innovation environment and business environment. They continue to improve the administrative adjudication system, innovate administrative adjudication methods, and improve the level of administrative adjudication. In particular, the first and second batch of pilot areas for the standardized construction of administrative adjudication of patent infringement disputes, such as Beijing, Shanghai, Liaoning, and Anhui, have solidly advanced the pilot tasks, continuously formed experience and practices in the construction of administrative adjudication, and achieved positive results. In February 2021, the State Intellectual Property Office organized a collection of experience and practices in the construction of administrative adjudication of patent infringement disputes, and jointly promoted 13 typical experiences and practices in the construction of administrative adjudication to the whole country, which will be used at the provincial (autonomous regions, municipalities directly under the Central Government) level. Played a very good role in setting an example and leading the way. In January 2022, in order to further play the leading role of advanced models, the State Intellectual Property Office organized and carried out the second batch of experience and practices in the construction of administrative adjudication of patent infringement disputes. Based on the summary, submission and recommendation of various places, the national knowledge The Intellectual Property Office, together with the Ministry of Justice, selected a new batch of 13 typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country. This batch of experiences and practices are practical, have their own characteristics, are pragmatic and practical, and are highly operable. They mainly focus on improving the administrative adjudication system, refining administrative adjudication procedures, improving administrative adjudication working mechanisms, innovating administrative adjudication working methods, and strengthening administrative adjudication capacity building. In terms of patent infringement disputes, it has formed experiences and practices that can be replicated, promoted and used for reference, which are very representative. It also fully demonstrates the practical results and innovative experience of administrative adjudication of patent infringement disputes in my country in recent years, and provides a basis for promoting the construction of administrative adjudication in various places. It broadens the ideas for innovative development and sets a model for learning and reference.

We now recommend 13 typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country, including "Beijing's construction of an administrative adjudication model that combines pre-trial inquiries, written hearings, and in-court adjudication". All localities must learn from it carefully, explore and form working models that are in line with local realities according to local conditions, and continuously improve their capabilities in administrative adjudication of patent infringement disputes. It is necessary to take this promotion of typical experiences and practices as an opportunity to continue to increase efforts and promote the standardization of administrative adjudication of patent infringement disputes with high quality. It is necessary to strengthen responsibility, pay close attention to work implementation, strive to form a good situation of pioneering and innovation, and learn from each other to catch up. Support the improvement of administrative protection capabilities of intellectual property rights with high-level administrative adjudication work, in order to implement new development concepts, build a new development pattern, and promote high-level Provide a strong guarantee for quality development, contribute to the construction of an intellectual property power, and welcome the successful convening of the 20th National Congress of the Communist Party of China with practical actions.

Attachment: The second batch of typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country

State Intellectual Property Office         Ministry of Justice General Office

September 27, 2022

Appendix

The second batch of typical experiences and practices in the construction of administrative adjudication of patent infringement disputes across the country

1. Beijing has established a trial model that combines "pre-trial inquiries, written hearings, and in-court rulings" for administrative adjudication. Beijing is actively building an administrative adjudication trial model for patent infringement disputes based on "pre-trial inquiry" and combining "written hearing" and "in-court adjudication". The first is to innovate the "pre-trial inquiry" trial model. Before the oral hearing, organize the parties to the infringement dispute to conduct inquiries, organize the presentation of evidence and cross-examination, summarize the focus of the dispute, and improve the efficiency of the trial. The second is to explore the "written trial" model. Based on pre-trial inquiries, for cases where the facts are clear and the legal relationship is simple, oral hearings will no longer be organized and administrative rulings will be made directly. The third is to establish a trial mechanism of “in-court adjudication”. Under the premise that the facts of the case are clear, a collegial discussion will be held directly after the oral hearing and the verdict will be announced in court. Beijing has reduced the processing cycle of complex cases to less than 2 months through a trial model that combines "pre-trial inquiries, written hearings, and in-court rulings", effectively improving the efficiency of administrative adjudication cases of patent infringement disputes and fully embodying the spirit of intellectual property rights. Administrative protection has the characteristics of convenience and efficiency.

2. Application of administrative ruling results on reform and innovation in Shijiazhuang, Hebei Province. Shijiazhuang, Hebei Province has made efforts in three aspects: institutional regulation, precise application, and differentiated supervision of administrative ruling results. The first is the system regulation of administrative adjudication results. Accelerate the delivery of adjudication results, and deliver the results in court where the results are announced in court, and deliver the results in a centralized manner to the grassroots bureaus that are geographically concentrated. The publicity content is standardized to improve the timeliness of publicity, requiring publicity on the portal within 5 working days. The second is the precise application of administrative ruling results. Establish a push ledger confirmation system for adjudication results to push the adjudication results to the grassroots to achieve seamless connection with supervision. Based on the ruling results, the industries, market entities, product categories, etc. with infringement activities will be analyzed and determined to determine the regulatory focus, and key areas and links will be targeted for special rectification. The third is the differential supervision of administrative ruling results. For those who are determined to have established infringements or repeated infringements, key supervision will be implemented, and those who meet the conditions will be included in the list of serious violations and dishonesty. Illegal acts discovered during the key supervision period will be severely punished in accordance with the law. Since 2021, Shijiazhuang has handled a total of 1,091 cases of patent infringement disputes. The innovative application of administrative ruling results has strengthened the protection of small, medium and micro enterprises and pillar industries, and better maintained market order.

3. Liaoning took the lead in incorporating administrative adjudication into local regulations. In July 2021, Liaoning passed the "Liaoning Provincial Intellectual Property Protection Regulations", taking the lead in incorporating administrative ruling-related provisions into local regulations. The first is to clearly adjust the expression "handling" to "administrative adjudication" and establish a first-hand mediation system for administrative adjudication. The "Regulations" stipulate that "the intellectual property authorities and management departments shall make administrative rulings on intellectual property disputes in accordance with the law at the request of the parties. Before making administrative rulings on intellectual property disputes, the intellectual property authorities and management departments may, based on the principle of the parties' voluntariness, Mediation shall be conducted first, and if mediation fails, an administrative ruling shall be made in a timely manner.” The second is to establish a judicial confirmation mechanism for mediation agreements. The "Regulations" stipulate, "Establish a judicial confirmation mechanism for intellectual property mediation agreements. If a party applies to the people's court with jurisdiction for confirmation of an intellectual property mediation agreement, the people's court shall review it in accordance with the law and make a decision on whether to confirm it." The third is to improve the supporting system for administrative adjudication. The "Liaoning Provincial Administrative Adjudication Rules for Patent Infringement Disputes" was issued to refine administrative adjudication procedures and regulations, and signed cooperation agreements with the Provincial Market Supervision Bureau and the Provincial High Court to strengthen the organic connection between intellectual property administrative adjudication and judicial protection.

4. Shanghai will create a “three-in-one” administrative adjudication working mechanism. Shanghai has created a "three-in-one" administrative adjudication working mechanism that simplifies procedures, takes mediation first, and connects with justice, and accelerates the construction of a fast track for patent administrative protection. The first is to simplify administrative adjudication case handling procedures. During the acceptance stage, those who meet the legal conditions will be registered on the spot. If the parties have made statements and written cross-examination before the oral hearing, the written hearing mode will be used to make a direct decision. The joint national office conducted a joint hearing on patent infringement and patent right confirmation and made a decision in court. The second is to carry out advance mediation of administrative adjudication. For cases with simple facts and minor disputes, both parties will be guided to mediate before the case is heard. On the basis of advance mediation, the judicial confirmation channel will be further used to create a fast protection channel of "administrative adjudication-administrative mediation-judicial confirmation". The third is to establish a linkage mechanism between administrative adjudication and judicial protection. Establish a "judicial-administrative" case transfer mechanism with the Shanghai Intellectual Property Court. Promote courts to implement an administrative ruling notification system, and parties can choose to resolve patent infringement disputes through civil litigation or administrative rulings. Shanghai has continuously improved the efficiency of administrative adjudication cases by simplifying procedures, prioritizing mediation, and linking up with the judicial "three-in-one" administrative adjudication working mechanism, and has given full play to the important role of administrative adjudication in resolving civil disputes.

5. Jiangsu establishes a standardized training system for administrative adjudication. Jiangsu actively promotes the standardization and systematic construction of administrative adjudication training to improve the province's administrative adjudication case-handling capabilities. The first is to increase investment in training funds. An average of more than 1 million yuan is invested annually in administrative adjudication business training. During the pilot period of standardized construction, a total of 8 training courses for administrative adjudication law enforcement personnel were held, with a total of more than 870 people trained. The second is to carefully design training courses. Training courses are designed in both online and offline aspects. Students can enter face-to-face training only after completing online self-study and passing the online exam. The online courses focus on basic knowledge related to intellectual property, while the face-to-face courses cover practical courses such as patent infringement determination standards and administrative adjudication case handling guidelines. The third is to provide training material support. The "Patent and Trademark Administrative Law Enforcement Practice" has been carefully compiled and published to provide standardized and systematic teaching material support for the professional training of administrative adjudication law enforcement personnel. The fourth is to strictly control the quality of training. Strictly select teaching experts, organize training effect tests, and provide timely feedback to student units on training results. Establish a training teacher database and implement dynamic management of teaching teachers. By establishing a standardized training system for administrative adjudication, Jiangsu has significantly improved its ability to handle administrative adjudication of patent infringement disputes. During the pilot period, a total of 8,225 cases of patent infringement disputes were accepted, including 984 administrative adjudication cases of patent infringement disputes.

6. Nanjing, Jiangsu Province, has smoothed the channels for accepting administrative adjudication cases. In response to the current situation of administrative adjudication work being affected by the epidemic, Nanjing, Jiangsu Province, actively opened up channels for case acceptance and provided high-quality services to parties. The first is to unblock regular acceptance channels. Through business training, the "12315" hotline personnel's ability to handle patent infringement dispute complaints and reports is improved, and dedicated personnel are assigned to strengthen the reception of telephone calls and consultation letters, so as to improve the efficiency of conventional channels. The second is to expand offline acceptance channels. Relying on multiple carriers such as 13 rights protection assistance sub-centers, 186 trade secret protection rights protection demonstration sites, intellectual property practice bases, intellectual property protection alliances, etc. covering the city, adjudication requests are accepted in a timely manner. The third is to promote online acceptance of clues. Set up a "Patent Infringement Dispute Acceptance" column on the Municipal Bureau's official website, publish acceptance information on the Municipal Bureau and the Municipal Protection Center's WeChat public account, and use the characteristics of online self-media to collect extensive clues such as high attention and fast dissemination. The fourth is to strengthen linkage with judicial arbitration. Arrange dedicated personnel in the Municipal Court Mediation Room and the Municipal Arbitration Court to actively publicize the advantages of administrative adjudication such as high efficiency and low cost, and encourage and guide parties to resolve disputes through administrative adjudication. In 2021, the city's administrative adjudication cases of patent infringement disputes will increase four times compared with 2019, and the quality of cases has also improved significantly.

7. Zhejiang took the lead in operating the “Internet+” digital administrative adjudication system. Zhejiang took the lead in operating the "Internet+" digital administrative adjudication system, continuously reducing the cost of rights protection. Zhejiang is the first country in the country to build and operate an "Internet+" digital administrative adjudication system, which enables the entire process of administrative adjudication cases to be handled online, and parties involved do not have to run away to safeguard their rights. The first is to apply for rights protection online. The requester can submit requests and evidence materials online through the digital system, and can track the status of the case online. The second is online review and processing. The rights protection request is transferred to the adjudicating agency for online filing review in real time, and the handlers at each link are reminded in real time. After review, the case filing notice and other documents are pushed online to both parties in accordance with the law, and they are notified in real time for inspection. The third is to conduct the entire process online. The person being requested can submit a statement of defense online and push it to the requester in real time. The case handlers can upload investigation and evidence collection materials online, and can conduct an oral hearing online through the video hearing system. The oral hearing transcript can be generated online and sent to both parties for real-time online signature confirmation. The fourth is online feedback of results. After the administrative ruling is made, it will be delivered online and both parties will be notified in real time to sign for receipt, realizing an online closed loop of "legislation, trial and ruling". At present, Zhejiang has handled 184 administrative adjudication cases of patent infringement disputes through this system, and the case handling cycle has been shortened by an average of 30%. At the same time, Zhejiang has vigorously promoted the handling of cases by county-level bureaus. County-level bureaus have made administrative rulings on 56 patent infringement disputes. Online and offline efforts have been made to smooth rights protection channels for rights holders, and the satisfaction level of intellectual property protection has increased to 84.87 points.

8. Anhui has implemented a combination of measures to build an administrative adjudication system. Anhui is developing a combined punch in the construction of the administrative adjudication system focusing on "who will make the decision and the decision will be accurate". The first is to issue policies and clarify responsibilities. The "Anhui Province Intellectual Property Protection Measures" clarify that "the intellectual property management departments at or above the county level shall make administrative rulings in accordance with the law at the request of the parties." The second is to print plans to promote innovation. We have issued an implementation plan for the pilot construction of administrative adjudication of patent infringement disputes, explored the establishment of a preliminary mediation mechanism for administrative adjudication in Hefei and other places, promoted online oral hearings of administrative adjudication cases in Xuancheng and other places, and launched technical investigators to participate in patent infringement disputes in Fuyang and other places. Pilot work on administrative adjudication cases. The third is to focus on standards and improve quality. The "Notice on the Implementation Measures for the Pilot Program of Judicial Confirmation of Administrative Mediation Agreements for Intellectual Property Disputes" and the "Anhui Province Implementation Measures for Administrative Rulings on Patent Infringement Disputes (Trial)" were issued to clearly establish the judicial confirmation of administrative mediation and administrative ruling notification systems. Revise the "Anhui Provincial Patent Administrative Adjudication Work Manual" to unify case handling procedures and substantive standards, and standardize the administrative adjudication case handling work. The fourth is to establish methods for strict assessment. The "Measures for the Inspection and Assessment of Intellectual Property Protection in Anhui Province" were issued, incorporating the number of administrative adjudication cases and the number of cases concluded into the intellectual property assessment indicators to consolidate territorial responsibilities. In 2021, Anhui handled a total of 1,495 cases of patent infringement disputes, and the case handling cycle was shortened by nearly 1/3 compared with the statutory time limit.

9. Tai’an, Shandong Province, established a three-level linkage disposal mechanism for administrative adjudication. Tai'an, Shandong Province has established a three-level joint disposal mechanism of city, county and office to lay a solid foundation for the administrative adjudication of patent infringement disputes at the grassroots level. First, the municipal bureau takes the lead in setting standards and ensuring quality. Formulate and promulgate the "Taian City Administrative Adjudication Procedures for Patent Infringement Disputes", answer grassroots inquiries immediately through training, setting up consultation hotlines (WeChat groups), collective discussions, etc., and adopt municipal-level review and serving as the leader of the collegial group to strengthen Quality control ensures fair and just rulings. Second, it is sponsored by the county-level bureau and has strong responsibility for implementation. According to the authorization entrusted by the Municipal Bureau, participate in the entire adjudication of patent infringement dispute cases within the jurisdiction, be specifically responsible for law enforcement links such as enquiries, on-site inspections, and fixing evidence, carry out detailed pre-adjudication basic work, and independently organize or invite municipal bureau law enforcement personnel to participate in the collegial group. Administrative rulings. The third is the assistance of grassroots offices to publicize and expand case sources. Establish an intellectual property protection station to widely publicize administrative adjudication work, promptly discover case clues, and assist in the acceptance, investigation and delivery of adjudication documents. Tai'an, Shandong Province has implemented a three-level linkage disposal mechanism between cities and counties, which has effectively expanded the source of cases and improved its adjudication capabilities. The number of administrative adjudication cases of patent infringement disputes in 2021 has more than doubled year-on-year.

10. Hubei builds a “four-in-one” administrative adjudication policy coordination mechanism. Hubei has built a "four-in-one" policy coordination mechanism to promote the pilot construction of administrative adjudication. The first is to strengthen top-level design. The "Implementation Opinions on Promoting the High-Quality Development of Hubei in the New Era and Accelerating the Construction of an Important Strategic Pivot for the Rise of the Central Region" and "Implementation Opinions on Accelerating the Construction of a Powerful Province with Intellectual Property" listed "promoting the pilot construction of administrative adjudication of patent infringement disputes" as a province-wide The important tasks of the 14th Five-Year Plan are advanced at a high level. The second is to improve the connection mechanism. The "Several Measures to Further Strengthen the Protection of Intellectual Property Rights in the Province" and the "Implementation Opinions on Strengthening Reform and Innovation in the Field of Intellectual Property Trial" were issued, requiring continued promotion of the connection between administrative adjudication and justice, the unification of administrative adjudication and judicial standards, and the docking of online litigation and mediation. . The third is to refine the procedural regulations. It is the first country in the country to issue administrative ruling implementation measures in conjunction with the judicial administrative department. The innovative breakthrough has no clear stipulations. It is clear that case handling forces can be coordinated and deployed within the jurisdiction, the respondent or a third party can be added, and undisputed facts do not need to be proved again. The fourth is to improve the support system. The Measures for the Management of Administrative Protection Technical Investigators have been issued to stipulate the functional positioning, selection and management, and work rules of technical investigators. In the past two years, Hubei has handled 2,918 cases of patent infringement disputes, and the quantity and quality of cases handled have improved.

11. Hunan will promote the pilot construction of administrative adjudication throughout the region. Hunan has comprehensively promoted the construction of administrative adjudication pilot projects in the province through batches of pilot projects and point-to-point trials in the province, and has overall improved the level of administrative adjudication capabilities. First, give full play to the guiding and promoting role of policies and regulations. The "Implementation Opinions on Strengthening the Protection of Intellectual Property Rights" was issued to provide policy guidance in aspects such as the construction of an administrative adjudication platform for patent infringement disputes, improvement of inspection and appraisal levels, application of high and new technologies, and capacity building. At the same time, the handling of administrative adjudication cases will be incorporated into the province's performance appraisal mechanism and the business environment evaluation index system will be optimized. The second is to promote the pilot construction of administrative adjudication in batches based on points and areas. In accordance with the "1:1" promotion method supported by the provincial bureau and supported by the municipal and state bureaus, the pilot construction of administrative adjudication in all cities and states in the province will be fully covered. According to the "Hunan Provincial Patent Regulations", administrative adjudication authority will be decentralized vertically to 122 counties and cities in the province, effectively broadening the scope of the pilot. The third is to strengthen the support and guarantee of professional and technical talents. Explore the establishment of a technical investigator system across the province and select and recruit the first batch of 30 technical investigators. For two consecutive years, 320 key personnel in administrative adjudication of patent infringement disputes across the province have been trained to obtain administrative law enforcement certificates. In 2021, the number of patent infringement dispute cases handled in Hunan increased by 50% compared with 2020.

12. Guangzhou, Guangdong has established a written review mechanism for administrative adjudication. Guangzhou, Guangdong has created a "written cross-examination + pre-ruling notification" model to promote the implementation of a written trial mechanism for administrative adjudication. The first is to clarify the applicable conditions. By clarifying the patent type, refining the requirements for evidence materials, and combining the statements of both parties, defense opinions, and on-site inspections by the case handling department, we can predict the size of the dispute between the two parties and the adequacy of the evidence, so as to determine the facts of the case in advance for the trial. The second is to standardize written cross-examination procedures. There is no need for the parties to appear in court to argue, and a 15-day cross-examination period is given to the parties to ensure that they can fully express their cross-examination opinions, infringement comparison opinions, etc., and effectively safeguard the parties' right to participate in the trial of the case. The third is notification before ruling. After the written hearing and before making an administrative ruling, the parties shall be informed in writing of the facts, reasons, basis and conclusions of the proposed administrative ruling to protect the parties' right to know and the right to object. The fourth is to make a decision after collegial discussion. Based on the opinions of the parties on the pre-ruling notification, the facts and legal issues of the case are discussed again, and an administrative ruling is made in accordance with the law, so that the parties can participate in the entire written hearing process invisibly. Guangzhou has actively explored the "separation of traditional and simplified cases" by establishing a written trial mechanism, and has concluded 11 administrative adjudication cases of patent infringement disputes in writing, with the shortest settlement period shortened by about 50% compared with the statutory period.

13. Chongqing will create an administrative adjudication model of “quick adjustment + quick decision + precise review”. Chongqing has created a three-tier administrative adjudication case handling model for patent infringement disputes through city-county linkage and cross-department collaboration of “quick adjustment + quick decision + precise review”. One is quick mediation. 20 district and county people's mediation committees for intellectual property disputes were established and 136 mediators were hired to resolve patent infringement disputes at the grassroots level. In 2021, 573 cases of patent infringement disputes were mediated. The second is rapid ruling. Breaking down administrative level boundaries and staffing restrictions, establishing a comprehensive office for administrative adjudication, selecting key law enforcement officials from the city, district and county levels to form a collegial group to handle patent infringement dispute cases. Formulate the "Chongqing Administrative Adjudication Guidelines for Patent Infringement Disputes", implement the case registration system, written trial system and undisputed fact recording system, and continuously shorten the case handling cycle. The third is accurate trial. Technical investigators for administrative adjudication are appointed to assist in ascertaining technical facts. Select 10 districts and counties to carry out pilot trials of technical investigators, and establish a precise trial work system for administrative adjudication cases with clear responsibilities and efficient operation through the "dedicated class + dedicated person + special case" approach. During the pilot period of standardized construction, many cases handled in Chongqing were selected as outstanding typical cases of administrative law enforcement in Chongqing and among the top ten typical cases of patent administrative protection in the country.

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