Shanghai IP Court held a ceremony to engage its first batch of technical inquisitors on March 16 this year. There were 11 experts and scholars from various technical fields accepting the engagement. The placement of these inquisitors signifies a 100th day of official operation of Shanghai IP Court technical inquisitor system. In these 100 days, the court placed emphasis on the foundation, rules and regulations, defined the positioning, norms and procedures and fully exerted the roles of these inquisitors so that they provided effective assistance for the IP judges in tackling the technical issues.
I. Regulation establishment and procedure standardization to serve as systematic support for the work in the court
In accordance with the Provisional Regulations of the Supreme People's Court on Several Issues regarding the Participation of the IP Court Technical Inquisitors in Litigation Activities (hereinafter referred to as the "Provisional Regulations"), Shanghai IP Court formulated a (Trial) Working Rules for Shanghai IP Court Technical Inquisitors to Participate in the Litigation Activities (hereinafter referred to as the "Working Rules") and a (Trial) Management Measures of Shanghai IP Court Technical Inquisitors (hereinafter referred to as the "Management Measures") by combining with the actualities of the trials in the court. Thanks to these rules and measures, there are specific provisions on such contents as the selection of the technical inquisitors, the assignment, withdrawal from certain cases, duties and responsibilities, procedures, methods and effects of participating in the litigations. The technical inquisitors’ duty performance and the system operation now have a solid foundation. On such foundation, the court then developed the Codes of Practice for the Technical Inquisitors by considering the actualities of the daily work and prepared 7 normative commonly-used forms and correspondences, including the Application Form of the Technical Inquisitor, Registry Form for Technical Inquisition Office and Official Correspondence for Assigned Technical Inquisitors. In the meanwhile, a WeChat group of technical inquisitors has been created for facilitating the daily contact and problem discussion and communication. The formulation of above rules and measures and preparation of the commonly-used forms have standardized the working procedures for the technical inquisitors and provided systematic support for guaranteeing the provision of a neutral, fair and objective technical opinions.
II. Position defining and learning reinforcement to ensure the effective performance of the technical inquisitors' duties and responsibilities
As the judge's technical assistant, the technical inquisitors is not an expert assistant entrusted by the parties to the case, nor has any judicial power like the judicial officers. In order to help these technical inquisitors have a firm grip of their function position, the Technical Inquisition Office firstly organized at proper time the dedicated learning sessions for these pemenant inquisitors for communication. The first is to learn the rules formulated by the Supreme People's Court and the court on the technical inquisitors' participation in the litigation as well as the corresponding codes of practice to clarify the the judicial assistant role of each inquisitor and help them get familiar with their duties and responsibilities and codes of conduct. Hence these inquisitors may apply their technical expertise to assist the judges in solving the technical problems and issue technical review opinions independently to ensure an objective, neutral and accurate technical fact finding. Secondly there were learning sessions on the rules of procedures corresponding to the civil procedure law arranged for the inquisitors. As the inquisitors may have scant opportunities to learn about the procedures and rules for a court hearing of the IP case, the aforesaid reinforced learning laid a foundation of recognition for a smooth operation of the court trial procedures. After learning, the technical inquisitors were ensured to fully exert their specific functions and assist the judges in the technical fact finding in a quality and highly efficient way.
III. Participation in the court trial and assistance in the ruling to actively carry out technical investigation and consultation
Pursuant to the Working Rules, the Technical Inquisition Office assigned the technical inquisitors per the requirements of the trial court to participate in the case trial and take in charge of providing technical consultation, issuing technical review opinions and other necessary technical assistances for the fact finding by the collegiate bench. On March 30, 2016, the Technical Inquisition Office assigned Zhang Ying, one of the permanent technical inquisitors, for the first time per the requirements of the trial court to participate in the trial of an information technology company in Changzhou vs. an information technology company in Shanghai concerning the dispute over the computer software copyright. In order to ensure a successful trial, Zhang Ying read the case files prior to the trial, actively communicated with the members of the collegiate bench, summarized the focus of the technical fact dispute and prepared the questions to be inquired during the court hearing process. In the trial, Zhang Ying inquired about the technical issues, identification standards and other problems involved in the judicial expert report submitted by one party to the case according to the judge's requirements. Following the close of the trial, Zhang Ying reviewed with the collegiate bench, proposed the technical review opinions and issue such opinions based on relevant requirements. As of the end of June, 2016, the Technical Inquisition Office has accepted 9 technical inquisition cases, completed 103 tasks including the technical consultation (one was providing the technical consultation for grass-root court) and issued 2 technical review opinions. The technical inquisitors were universally welcome by the judges of the trial court thanks to their solid expertise in technologies, active attitude, rigorous and highly-efficient working.
IV. Solving the difficult questions and fixing the weak points to constantly improve the effect of operating the technical inquisitor system
The over 3 months of the technical inquisitor system operation had some gains, but there are still some issues, such as the failure to fully meet the needs of trial practices in terms of the technical expertise fields and the headcount of these inquisitors, and the fledgling stage of the related system in need of further standardization and improvement. Therefore Shanghai IP Court will make efforts in the following three aspects in the next step. The first is to motivate actively and enhance management to try the best to serve the trial in the court. In face of the current pressure on the trials, the court will reinforce the cooperation between the Technical Inquisition Office and the courtroom, strive to complete the inquisitor assignment in the minimum time upon the receipt of the courtroom application, eradicate the impact over inspection and trial of the IP cases due to the management reason and eradicate the delay in issuing the technical review opinions to affect the ruling over the case. The second is to pay attention to the details, accumulate the experience and keep standardizing and improving the processes and systems. The court will find and solve the questions through adjusting and adaptation, place emphasis on the follow-up standardization of the technical investigation and sort out the problems which may emerge and need to be solved in the aspects such as the application, assignment, withdrawal of the technical inquisitors, participation in the pre-trial meeting, preservation, court hearing, deliberation and preparation of the review opinions by starting from the details and refine the functions to achieve timely resolution. The third is to achieve the balance development, enhance the communication and encourage exerting the roles of the part-time technical inquisitors. In the current provision of the technical consultation and technical investigation service, both permanent and part-time inquisitors have played their corresponding roles. But the advantages in the expertise for these part-time inquisitors are yet to be explored. The Technical Inquisition Office will intensify the interaction and communication between the permanent inquisitors and part-time ones, the IP judges and inquisitors by utilizing the information approach such as the WeChat group to guarantee the in-depth discussion and efficient solution of the difficulties and problems of new technology realm emerging in the IP cases.
