[Jiefang Daily]Observation on the Shanghai Intellectual Property Court solving the "three major problems" with intellectual property protection:Part III

By appointing technical investigators, hearing cases via remote video, adopting pre-litigation mediation and other means, disputes can be settled quickly and effectively, andenterprises no longer fear that they would lose their business after winning the case

Sept. 3, 2018 Jiefang Daily 02: News

By Wang Xianle

Many enterprises confess that what troubles them most in intellectual property lawsuits is that they would lose their business even if they win the case. A number of business leaders interviewed said that if the trial process is too long, they would feel "overwhelmed".

In the first half of this year, the Shanghai Intellectual Property Court accepted 1,013 cases and concluded 894 of them, a year-on-year increase of 26% and 15% respectively. However, the number of judges has not increased accordingly. So how does the court manage to settle the disputes quickly and effectively?

The "four in one" system accelerates the identification of technical facts

If judges are asked in intellectual property cases, which part takes the longest time? Nine out of ten may give this answer: the identification of technical facts.

In one case, the plaintiff applied to the court for judicial appraisal of 25 subsystems of a piece of computer software. "Each subsystem of this software is equivalent to the size of one system in other cases, and the appraisal would take a very long time. But we have to do the appraisal if we want to get the case heard." As the judge was fretting himself over the tricky task, there came the technical investigator Wang Chuanji. As a computer professional, Wang combed the 25 subsystems together with the plaintiff and the defendant at the pre-trial meeting, clarified the scope of dispute, and finally determined that only one third of the subsystems needed to be identified.

"The identification of technical facts is the basis for a fair hearing of cases. In the past, the way to settle technical disputes was mostly that the parties applied for the court to entrust a third-party organization to appraise, which was costly and time-consuming.” said head of the Technical Investigation Office of the Shanghai Intellectual Property Court, and that the appointment of the resident technical investigators can ensure judges to be advised in time, which would greatly improve the efficiency of trial and save the parties a large amount of money for identification. Shanghai Intellectual Property Court has appointed 13 technical investigatorsin total, covering professional technical fields such as materials, chemical industry, electronics, telecommunications, networks, optoelectronics, medicine and communications. As of July 2018, the Technical Investigation Office had accepted 167 cases concerning technical investigation, completed 674 technical consultations and related affairs, participated in 29 evidence preservations and on-site inspections, appeared in court 207 times, and issued 46 technical review opinions and advisory opinions.

In recent years, the Shanghai Intellectual Property Court has gradually explored and formed a "four-in-one" system of technical fact investigation and identification, namely, technical investigation, technical consultation, the jury of experts and technical identification, providing technical support to judges to help them accurately and efficiently identify the technical facts of cases. According to statistics, after the implementation of the "four-in-one" technical fact identification mechanism, the average number of trial period hasreduced by 16 days compared with the previous year.

"Remote trial" helps the parties save time and energy

Apart from the identification of technical facts, the Shanghai Intellectual Property Court has also made great efforts to optimize the trial process. In June this year, the court concluded a dispute over a computer software development contract in only 51 days.

According to the judge, thanks to the Internet technology, the case, in spite of being heard twice, wasclosed in less than two months. Given the fact that the defendant was far away in Chongqing, and the preliminary evidence had been produced and examined, the second trial and sentencing were conducted, with consent of both parties, via remote video.

"With the use of information technology to conduct remote mediation, hearing, trial and sentence, data have replaced people to do a lot of work.It has not only saved time and economic costs for the parties, but also sped up the trial of cases. It is a powerful measure to promote judicial openness, deepen judicial reform and strengthen judicial services for the people." said Li Shulan, vice president of Shanghai Intellectual Property Court. When hearing four appeals against jurisdiction, considering that the facts of the cases were clear, the focus of the disputes clarified and the parties had no new evidence to submit, the collegial panel decided to try the cases via remote video. After listening to the parties, the collegial panel adjourned to discuss and made a ruling in court. The trial of the 4 cases took less than 1 hour.

Mediation provides more options for dispute settlement

In addition, since its inception, Shanghai Intellectual Property Court hassigned cooperation agreements with 14 social mediation organizations and trade associations in computer software, biomedicine, etc. By the end of June this year, 26.9% of the cases had been successfully mediated before litigation with the consent of both parties. The average time for mediation was only about two weeks.

It is said that the mediation organizations will regularly send mediators to the court, and the court will also train the mediators in mediation methods, relevant legal knowledge, typical cases and so on, so as to improve the success rate of mediation.

Apart from pre-litigation mediation, the Shanghai Intellectual Property Court is also trying to entrust mediation organizations to conduct mediation during litigation. Recently, when trying a case concerning the dispute over a computer software development contract, Judge He Yuanentrusted Shanghai Software Industry Association to mediateafter obtaining consent of both parties. With his solid professional knowledge, the mediator of Shanghai Software Industry Associationmanaged to have both parties sign the mediation agreement and successfully settled the dispute.