[Shanghai Law Journal] Be a Guardian of Wisdom and Back up People on Our Own Side -Shanghai Intellectual Property Court Safeguards Innovations of Private Enterprises November 16, 2018 Shanghai Law Journal Page A2 Trainee Journalist: Zhang Yehe On November 1, General Secretary Xi Jinping remarked at a symposium on private enterprises that private economy is an integral part of China's economic system, and that private enterprises and private entrepreneurs are on our own side. During his visit to Shanghaifrom November 6 to November 7, Xi said that it is imperative to drive forin-depth development of reform and opening up and implement policies and programs that encourage, support, and guide the development of private enterprises, thus to create a sound institutional environment for the development of private enterprises. With the further advancement of mass entrepreneurship and innovation, private enterprises have become a "dynamic force" of innovation and entrepreneurship. One of the efforts toback up private enterprises - "people on our own side"- is to safeguard the innovations of private enterprises. Recently, the journalist learned from the Shanghai Intellectual Property Court (hereinafter referred to as SIPC) that it has made numerous explorations when it comes to strengthening the judicial protection of intellectual property rights and serving as a guardian of the intellectual achievements of private enterprises. Office of Judge Chen Huizhen is devoted to "solving problems for the people". SIPChas made great efforts in safeguarding the innovations of private enterprises, as are evidenced by appointment of technical investigators, the "four-in-one" technical facts ascertainment mechanism, and pre-litigationand litigation mediation by professionals, etc.. It can be said SIPC has becomeincreasingly experienced and confident in this respect. 2015 "Open for Reception" To be a "Specialized Doctor" for Private Enterprises "How to shorten the trial period?" "It is difficult to ascertaininfringement of drug patent, and how to obtain evidence effectively?" "In case the technicians concerned change their jobs, how to collect evidence of his infringement act" ...The private entrepreneurs can find the answers to these questions concerningprivate enterprisesin Room 701, No. 1158 Zhangdong Road, Zhangjiang Hi-tech Park, Pudong, and get detailed instructions and explanations . Realizing that private enterprises are "eager to make plenty of innovations" but lack knowledge on "intellectual property protection of innovations", SIPC, together with Zhangjiang Hi-tech Park Management Committee, set up the "Office of Judge and National Trial Expert Chen Huizhen" in Zhangjiang Hi-tech Park on June 25, 2015 in a move to helpprivate enterprises find specific ways to solve their "difficulties" and make up for their "disadvantages". On the 26th of each month, Office of Judge Chen Huizhen will be open to the visitors. The judges will receive business representatives from Zhangjiang Hi-tech Park, and fromelsewherein the city. Many of them are private entrepreneurs who are committed to innovation. Thejudges ofOffice of Judge Chen Huizhenprovide consultation services for these business representatives in urgent need of legal help andhelp to solve their problems. Sometimes, Office of Judge Chen Huizhen also offers "home delivery" services: the judges pay visits to different development parks for interviews, lecturing or legal publicity. "I've never expected togetthe most professional judicial assistance without leaving the park. At Office of Judge Chen Huizhen, we have felt the substantialsupport of the government for enterprises and intellectual property rights. Usually, our impression of judges is to judge between right and wrong in the court. But here in Office of Judge Chen Huizhen, the judges are more like doctors. They diagnose difficult diseases we've encountered and then give prescriptions,”commentedMr. Lin, director of a biological industry company. Thiscomment that judges are "exclusive doctors" for enterprises really gets to the point. Office of Judge Chen Huizhenhas been established to help entrepreneurs solve their tough problems andhas always stayed true to this original aspiration. According to the statistics, Judge Chen Huizhen has held 11 special lectures and 10 Q&As in 13 parks including the Zhangjiang Hi-tech Park Management Committee, Xinmin Pioneer Park for Overseas Returnees in Minhang District, etc. A total of more than 1,000 enterprise representatives have attended these lectures and enjoyed the "home delivery" services provided by SIPC. 2016 The Introduction of Technical Investigators To Build a "Bridge" Between Judges and Private Enterprises For most private entrepreneurs, the protection of innovations is crucialto the development and survival of their enterprises. However, most of the middle and small/micro-sized private enterprises involved in lawsuits do not hire intellectual property specialists, which makes it difficult for them to communicate with judges on problems regarding both technologies and laws. Moreover, the judges involved usually do not have a technical background and are not familiar with the technologies ofenterprises. This makes the ascertainment of technical facts a hard nut to crack during the hearing of these cases. If the judges can’t fully understand the technical facts, they will be confused when discussing the technologies of an enterprise during hearing, thus failing to navigate a pathway through the trial. How to enableprivate enterprises to "voice their opinions clearly", so that judges can fully "understand" them? With external professional help, SIPC has built a bridge between judges and private enterprises, breaking the "communication" barrier between the court and private enterprises. On March 16, SIPC held an appointment ceremony for the first batch of 11 technical investigators. By inviting them to participate in case hearings, and giving full play to the advantages of professionals of science and technologies in technical identification, the intellectual property judicial protection has been greatly strengthened. The technical investigators have become the "technical consultants" for judges. The first batch of technical investigators are experienced experts from all walks of life. It is learned that they are employees from state organs, industry associations, universities and colleges, scientific research institutions, etc. Technical investigators will participate in litigation activitiesas judicial supporting staff, and make use of their professional advantages in ascertainingtechnical facts, thus making the ascertainmentof technical facts more professional, impartial and scientific. As shown by thestatistics, SIPC has appointed a total of 13 technical investigators. These technical investigators have completed 734 technical consultations and related affairs, participated in evidence preservation and on-site inspections for 34 times, appeared in court for 247 times, and issued 60 copies of technical investigation letters and advisory opinion letters. 2017 With "Four in One", Experts Help Crackthe Problem of "Lengthy Trial" for Private Enterprises On August 16, 2017, as the judicial mallet hit the table, the case that Mr.Hu sued Beijing Mobike Technology Co., Ltd. against the infringement of his patent rightswas finally closed. This case once aroused great sensation among the public. Despite the fact that the technical disputefactsinvolved in the case were rather complicated, the court hearing of the case was brought to an end within one and a half hours. This was made possible by the participation of both technical investigators and the expert jurors in the trial. During the court hearing, Hu Bo, deputy president of the School of Information Science and Technology, Fudan University, served as the juror, and Zhou Tao, chief engineer of China Telecom Shanghai Research Institute, served as the technical investigator. It is worth noting that technical investigators and expert jurors play different roles in court hearing. Technical investigators focus on preparations before the court. Throughout technical hearings, they are responsible forfixing technical facts uncontroversial to both parties and assist the judge in determining the key pointsand approachesfor the hearing of a case. Expert jurors, however, focus on the overall understanding of a case duringthe court hearing and make independent judgments after examining court papers and raising supplementary questions about technical facts during the court hearing. The private enterprises involved in cases often suffer lengthy trial. It is learned that, compared with last year, the average days of hearing technical cases at SIPC has decreased by 16 days, which is attributed to the application of the flexible "four in one" technical identification system by SIPC, namely technical investigation, technical consultation, expert jury, and technical appraisal. Technical investigators have participated in 247 court hearings and 83 expert consultations since the establishment of SIPC. Expert jurors have participated in 183 jurors and 43 entrusted technical appraisals. Of course, the advantages of the "four in one" system won't be brought into full play without the backup of institutional norms. SIPC has formulated specific operational rules such as the Rules for Technical Investigators' Participation in Litigation Activity, the Rules for Consultations by Invited Scientific and Technical Consultation Expert, and the Methods&Guidelines for the Operation of People's Jurors in Trialso as to ensure the orderly and effective operationof the "four-in-one" technical facts ascertainmentsystem. 2018 Flexible Mediation Before and During Litigation Tailored Service for Private Enterprises Recently, SIPC received two letters of thanks from both the defendant and the plaintiff of one case. The two private enterprises were involved in a dispute over infringement of patents. After the preliminary trial at SIPC and under the conciliation of the Shanghai Commercial Mediation Center, both the defendant and the plaintiff reached a package of mediation agreement and shook hands in court. Actually, SIPC has received countless such letters of thanks, and this, in no small part, is due to the flexible applicationof pre- and during-litigation mediationtailor-made for enterprises. Given the fact that intellectual property cases involvehigh-level expertise and technologies, SIPC has also signed cooperation agreements with 13 social mediation organizations and industry associations relating to software, bio-medicine, etc., , and recruiting social resources to expand theteam of mediators and makingmediation more specialized, professional and standard. A total of 291 cases have adopted pre-litigation mediationsince the establishment ofthe pre-litigation mediation mechanism. Among them, 85 cases have been successfully mediated, with the successrate reaching29.2%. Meanwhile, private enterprises, state-owned enterprises, and foreign-funded enterprises have beentreated equally. The protectionof intellectual property rights has beenimplemented strictly, equally, and effectively, and SIPC has unswervingly adhered to these three principlesin the past four years since its establishment. So, what further actions will SIPCtake to protect private property rights in an effort toencourageinnovation of private enterprises? Chen Yajuan, president of SIPC, said that “during the ‘big survey’, we have identified many difficulties and obstacles confronted by private enterprises in the creation, protection and applicationof intellectual property rights. Focusing on cracking the problems of intellectual property protection such as difficulty in presenting evidence, low compensation, lengthy trial, etc., we will continue to, strengthen reform and innovation, give full play to the role of temporary judicial protection measures, fully recognize the market value of intellectual property, and fully utilize diverse dispute resolution mechanisms to reduce the cost of safeguarding rights and interests for private enterprises, thus extricating them from the dilemma of “winning the lawsuit but losing the market”, and creating a market environment of fair competition for private enterprises."
