IP judicature appraisal means that IP appraisers analyze and appraise special issues involved in litigation or non-litigation and provide an appraisal opinion and report by using science-technology and/or special knowledge. A qualified appraiser must perform his task in the appraisal organ in which he is enrolled. The scope of IP judicature appraisal includes patent, trademark, copyright, computer software, technological information, well-known commodities and trade secret as well as other contents related to IP.
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1. Articles 63 and 72 of the Civil Procedure Law of P.R.C
2. Articles 31 and 35 of the Administrative Procedure Law of P.R.C
3. Articles 42, 119-121 of the Criminal Procedure Law of P.R.C
4. Rules 25-29 of the Provisions on Civil Procedure Evidence, prescribed from the Supreme Court
The relevant provisions in the above said laws and judicial interpretation are as follows.
Where the people's court considers that the special issue should be appraised, the special issue should be submitted to the legal appraisal organ for appraising and where there is no legal appraisal organ, the special issue should be appraised by the appraisal organ designated by the court.
The appraisal organ and the designated appraisers are entitled to go through the concerned materials for exercising appraisal, and may enquire the parties and the witnesses if necessary.
The appraisal organ and its appraisers should provide a written appraisal conclusion signed or affixed there seal on it by the appraisers and affixed the seal of appraisal organ so as to substantiating the figure of the appraiser.
In the civil, criminal and administrative procedures, a party may file an application for appraisal with the people's court or directly entrust an appraisal organ by himself before instituting a lawsuit. And a court may personally designates an appraisal organ or on the basis of the opinions of the two parties. The appraisal conclusion may be used as one of the evidences.
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1. During the non-litigation proceeding:
Determining the validity and legitimacy of IP right for IP right owners;
Determining for parties whether the new developed technology and/or to be sold will fall into the protection scope of the existing IP rights;
Where IP disputes happen, before the commencement of legal proceedings, an appraisal conclusion can be the important reference for the parties to determine a preferable approach and a method for properly resolving the dispute. Respective evidence being required in administrative procedure, conciliation procedure, arbitration procedure, compromise procedure and litigation procedure, the appraisal conclusion will help the parties well understand the prospects and will provide guidelines for parties to properly determine an advantage procedure to resolve the dispute.
2. During the litigation proceeding:
The appraisal conclusion is one of the statutory litigation evidences, which is definitely prescribed in the Civil Procedure Law, the Criminal Procedure Law, the Administrative Procedure Law, the Rules on Civil Proceeding Evidence prescribed in the Supreme People's Court and the Rules on Administrative Proceeding Evidence prescribed in the Supreme People's Court. Both the judicial organs and the parties could apply the appraisal conclusion to the Proceeding.
On the spot of judicial organs:
The appraisal conclusion made by an appraisal organ can definitely draw a just and objective conclusion on the technical status and legal status with respect to the fact to be approved. So judicial organs can properly decide the disputed fact and adjudge correspondingly.
On the spot of the plaintiff and the agents:
i. Based on the appraisal conclusion, the plaintiff and the agents could properly and objectively understand the litigation prospect.
ii. Based on the appraisal conclusion, the plaintiff and the agents could decide which one of compromise ways, warning ways and litigation ways should be adopted to resolve the dispute.
iii. Based on the appraisal conclusion, the plaintiff and the agents could decide whether filing a request for property preservation so as to reducing litigation risk.
On the spot of the defendant and the agents:
i. Determining whether the defendant has infringed the IP right of the plaintiff's on the basis of the appraisal conclusion.
ii. Properly selecting a compromise way, a way of filing the request for invalidation of IP right, or a way of non-infringement defence on the basis of the appraisal conclusion so as to determine how to enter appearance in the court.
iii. Pre-evaluating the validity of the reasons of the request for invalidation of IP right of the plaintiff on the basis of the appraisal conclusion.
iv. Pre-evaluating the validity of the reasons of the non-infringement defense on the basis of the appraisal conclusion.
Appraisal report will play an important role for the parties to objectively understand the disputed facts, grasp the initiative in the litigation, reduce litigation risk and litigation cost. In the preceding, where the parties file a request with the court to make an appraisal, it should be filed within quoting deadline. Otherwise, the party should bear the aftereffect of non-quoting. Where the court personally designates an appraisal organ, the decision will be made during the hearing or recess. The appraisal conclusion will be the important reference by which the court makes judgments as soon as the appraisal conclusion is done.
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