Technical Investigators Have Rules To Follow In China’s Intellectual Property Courts

BEIJING – With the Beijing, Shanghai and Guangzhou Intellectual Property Courts being put into operation late last year, the rules for technical investigators had been missing until 21 January, when the Supreme People’s Court released the Provisional Regulations of the Supreme People’s Court on Several Issues concerning the Participation of Technical Investigators in Intellectual Property Court Proceedings. This is China’s first of its kind making rules for technical investigators. 

(For the story in Chinese, see here.)

Unlike expert witnesses, technical investigators are introduced into court proceedings in an effort to help judges resolve technical issues against the backdrop of most judges being only acquainted with legal knowledge and more and more intellectual property cases technically difficult to understand.

The Provisional Regulations contains ten articles, which are to be detailed as follows:

Article 1: Technical investigators shall be deployed at the Intellectual Property Court as judicial auxiliary staff. A division of technical investigation shall be set up under the Intellectual Property Court, and held responsible for the routine management of technical investigators.

Article 2: In hearing highly technical civil and administrative cases related to patents, new plant varieties, integrated circuit layout designs, technical secrets, and computer programs, the Intellectual Property Court may appoint technical investigators as participants in the proceedings thereof.

Article 3: The judge, according to the needs of litigation, may give written notice to the technical investigation division, and the division shall send a technical investigator as needed to participate in litigation activities. The technical investigator participating in the litigation shall be identified in the case source part of the header of the adjudication document by listing his or her capacity and name.

Article 4: The litigants shall be notified within three days after the Intellectual Property Court decides to send a technical investigator to participate in litigation activities.

Article 5: The litigants are entitled to apply for the recusal of the sent technical investigators. The technical investigator shall be challenged in accordance with the regulations for the recusal of judicial personnel stipulated in the Civil Procedure Law and the Administrative Procedure Law.

Article 6: Upon the judge’s request, the technical investigator, with regard to case-related technical issues, shall perform the following duties and responsibilities:

1. Pinpoint the focus of dispute as to technical facts by consulting litigation documents and evidential materials;
2. Make recommendations as to the scope, sequence and method of investigation of technical facts;
3. Participate in investigation, evidence collection, inspection, and preservation, and make recommendations as to the methods and procedures thereof;
4. Participate in inquiries, hearings, and trials;
5. Advance technical examination opinions, and attend collegiate panel deliberations;
6. Assist the judge, when necessary, in calling together appraisers and professionals in related specific technical fields to gather appraisal opinions and advisory opinions thereof;
7. Complete other tasks assigned by the judge.

Article 7: During his or her participation in inquiries, hearings, and trials, the technical investigator, with the judge’s permission, may question the litigants, agents ad litem, witnesses, appraisers, inspectors and persons with specialized knowledge with regard to case-related technical issues. The technical investigator shall be seated to the left side of the assistant judge, and the clerk to the right side thereof.

Article 8: In attending case deliberations, the technical investigator shall give his or her opinions with regard to case-related technical issues, and respond to inquiries of the judge about technical issues. The technical investigator shall have no right to vote on case adjudication. The technical investigator’s opinions shall be kept in the notes of deliberations, and the notes be signed by the technical investigator.

Article 9: The technical examination opinions offered by the technical investigator may serve as a reference for the judge in finding technical facts.

Article 10: Other people’s courts may refer to these Regulations when hearing the cases listed in Article 2 hereof.

Mingjiang Liu is an editor, associate professor, and doctor of law in intellectual property with Henan University of Animal Industry & Economics in Zhengzhou city, Henan province, China, and may be reached at mjliu@pku.edu.cn.