Comments to Supreme Court on Opinions on Comprehensively Strengthening the Judicial Protection of Intellectual Property (Draft for Comments)

2020-04-09 | Beijing, Shanghai

The European Chamber warmly welcome the Supreme People’s Court’s Opinion on “Comprehensively Strengthening the Judicial Protection of Intellectual Property”, which reflects China's efforts on intellectual property protection. It will make China more and more consistent with the intellectual property protection policies of developed countries. The measures to strengthen judicial protection over commercial identifier interests and trade secrets are highly important and very timely. Meanwhile, the European Chamber expects a specific implementation plan.

We think that the level of protection should reach as high as: “Judicial Protection to Lead the Protection of Intellectual Property”, or “Implement the (Most) Strict Protection of Intellectual Property”. The (Most) Strict Protection of Intellectual Property means the efficient implementation of injunctions/preliminary measures, high damage awards such as punitive damage, compulsory measures, criminal punishments, in order to raise the cost of infringement, reduce the benefit from infringement, and avoid the repeated infringement.

In particular, there is gap in criminal protection to achieve the National IP Strategy of “Implementing the (Most) Strict Protection of Intellectual Property. Also the standards to apply the criminal protection for trade secrets [3][4] and the preliminary measures are inconsistent, which impact on the strength of protection.
In addition, Chinese courts are facing challenging cases arising from AI, big data and other new technical areas. We expect the Supreme People’s Court will lead the research and participate in global collaboration in these new areas (e.g. copyright and patent eligibility of AI-generated results, what data (raw data, big data, non-personal data) is subject to IP protection), and produce guidance to align the judicial opinions, so to drive the development through innovations.