CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
5.3 Settling the Case It is common for the parties to settle civil cases on intellectual property rights. Typically, when a plaintiff files such a case to a People’s Court, the People’s Court would proceed the case to the pre-litigation mediation process before for- mally docketing the case. Throughout the whole process of the trial before the final judgment, the People’s Court can organise and assist in mediation. Once a mediation consent judgment is signed by both sides, it shall become legally binding to them. If the parties reach a settlement agreement on their own during the litigation process, the Peo- ple’s Court may, based on the application of the parties, confirm the settlement agreement in accordance with the law and prepare a media- tion consent agreement. The People’s Court may appoint assistants or invite relevant entities and individuals to engage in the settlement upon request by the parties. 5.4 Other Court Proceedings A patent infringement case might be stayed pending the decision of the invalidation admin- istrative proceedings, see 4.4 Revocation/ Cancellation and Infringement . If a claim of a patent, as the right ground of an infringement lawsuit, is declared invalid by the CNIPA, the People’s Court may determine to dismiss the patent infringement lawsuit. Effective judgments or rulings rendered by for- eign courts shall be examined by the People’s Courts before recognition and enforcement in China. Therefore, the determination of a foreign court does not directly influence the litigation proceedings in the People’s Courts.
The number of trial hearings depends on the complexity and the procedural requirements of the case. While some patent rights lawsuits only take one hearing, others may need several hear- ings to complete. Upon notice by a People’s Court, a witness is expected to testify in court unless under special circumstances where the witness is not able to be present in person. A party may apply to the People’s Court for a person with expertise to appear in court to offer an opinion regarding an identification conclusion or regarding a special- ised technical issue. A party may question a wit- ness or a person with expertise upon permission from the People’s Court. The remedies for patent infringement are usually decided at the same time as the judicial deci- sions on the litigation claims. 5.2 Decision-Makers Patent invalidation requests are reviewed and determined by examiners from the CNIPA with technical backgrounds in the correspond- ing technical fields. During the judicial period, patent-related disputes are determined by legal judges who may or may not have technical back- grounds. China has established an Intellectual Property Court in the Supreme People’s Court, and four specialised Intellectual Property Courts in Beijing, Shanghai, Guangzhou, and Hainan Free Trade Port. Otherwise, there are intellec- tual property tribunals in over 20 Intermediate People’s Courts. The judges in these courts are more experienced in intellectual property rights proceedings. The parties have no influence on who is the decision-maker but can attempt to move the case to an appropriate jurisdiction by “forum shopping” tactics.
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