December 27, 2018 People’s Court Daily Page 5
Shan Xiaoguang, Dean of Shanghai International College of Intellectual Property, Tongji University
40 years’ reform and opening up has brought new opportunities for a new round of scientific and technological revolution under the surging tide of globalization, and also witnessed China’s new era of doing wonders. “The private sector’s contributions are undeniable for the country to be able to make miraculous achievements in economic development,” General Secretary Xi Jinping said. Private sector of the economy contributed to more than 60% of GDP and more than 70% of the technological innovation achievements, which has become an indispensable force behind China’s development and the main contributor to job creation and technological innovation.
As the backbone of innovation, private enterprises have encountered many difficulties and problems. Various hidden restrictions and hindrances (policies and systems) constrained their development. In the process of innovation and entrepreneurship, they are faced with some challenges and difficulties to a certain extent in terms of IPR creation, protection and application, especially for some technology-based private start-ups who need the protection of systems and laws.
Shanghai Intellectual Property Court, which has been established for nearly four years, strives to solve the difficulties of private enterprises, and actively creates an innovative environment for fair competition through concrete actions and vivid and moving examples, so that they can truly become the main force of innovation and entrepreneurship, and the great contributor to economic development.
How to shift from post-trial to pre-warning & prevention is one of the problems that Shanghai Intellectual Property Court has been thinking about and trying to solve. Through “opening the door” and “door-to-door publicity,” the court managed to provide legal services and publicity on the rule of law for private enterprises to protect their intellectual property rights. For example, judges from Office of Judge Chen Huizhen, National Adjudication Expert visited Fengxian Park to investigate the management and need for judicial protection of intellectual property rights in the park, and answered questions raised by enterprises on the spot. Representatives of private enterprises from various fields, such as Mercury, Chicmax Cosmetics, Mahle Technology and Finc Bio-tech, etc. consulted the judges on the IPR protection and defense encountered in their work respectively, and got satisfactory guidance and explanation. The legal services of Shanghai Intellectual Property Court are meticulous.
As we all know, private enterprises are generally active innovation entities, but they are vulnerable to infringement. To this end, Shanghai Intellectual Property Court set up a bridge of technical translation to solve the technical communication among private enterprises. In general, most small, micro and medium private enterprises don’t have their own intellectual property professionals. When involved in legal proceedings, they are always unable to tackle problems relating to both technology and law. Few lawyers hired have rich knowledge of technology, while technical personnel are often not familiar with the law, making it difficult to communicate with the judges. On the other hand, judges usually don’t have relevant technical background, which discourages them from ascertaining technical facts when hearing technology-related intellectual property cases, and making it difficult for them to grasp the focus of dispute. How private enterprises express themselves clearly and how judges understand what they say has become a concern of judges of Shanghai Intellectual Property Court. To eliminate this “estrangement,” the court has built a bridge between judges and private enterprises with the help of external professionals. It engaged technical investigators and appointed them to participate in the trial of cases to give full play to the professional advantages of S&T professionals in ascertaining technical facts, thereby improving the trial quality and efficiency of IPR cases.
“Difficulty in providing evidence,” “low compensation” and “long period” have almost become recognized problems in IPR protection in China, which are especially a headache for many private entrepreneurs who are still in the stage of starting a business. Shanghai Intellectual Property Court made great efforts to try to solve the pains and difficulties encountered by private enterprise in their IPR protection. In the past four years, a beneficial exploration and practice on strict judicial protection of IPR have been done by perfecting the judicial mechanism, giving full play to the role of deterrent power of laws and increasing the compensation for infringement.
The results are good, but there’s still a long way to go. “We will adhere to the equal treatment of private, state-owned and foreign-funded enterprises, stick to strict, equal and efficient protection of intellectual property of all kinds of rights holders, and focusing on resolving the “difficulty in providing evidence,” “low compensation” and “long period” in IPR protection, continue to intensify the punishment for infringement while reduce the cost of safeguarding their legitimate rights to prevent private enterprises from ‘winning lawsuits but losing the market’, thereby creating a fair market environment for private enterprises and fully vitalizing the innovation in the private sector of economy.” Chen Yajuan, President of Shanghai Intellectual Property Court, made it clear that the court will continue to work tirelessly to build a new highland of IPR protection.
In the new journey for a new era, China is committed to developing a higher-level open economy and promoting to build a new pattern of comprehensive opening up, which will bring great challenges and opportunities for us to enhance our capacity and level of IPR protection. At present, the new revolution of science and technology is fierce, especially the application of big data and artificial intelligence, which brings new challenges to IPR protection. We are pleased to see that in addition to Shanghai Intellectual Property Court, all intellectual property circles nationwide are working to protect the intellectual property rights and to create a legal environment for protecting and encouraging innovation.
To support the development of private enterprises, promote their strength and excellence, and transform their innovative achievements into real market values, it is necessary for all walks of life to jointly establish and create the idea that protecting intellectual property rights is protecting innovation. Innovation entities, administrative organs, judicial organs and the general public should work together to form a three-dimensional protection network of intellectual property, where they assume their respective responsibilities and play their due role to make IPR protection the biggest boost to China’s economy. Among them, IPR judicial protection needs to be strengthened and brought into full play its dominant role in regulating and punishing infringement, setting up adjudicative rules, guiding the social value and creating a legal market environment that encourages innovation and fair competition.
