4.6.3 Finding of technical facts
Technical facts are facts involving specialized technical content that need to be found in the trial of civil cases involving intellectual property. As trials of technology-related cases involve the finding of complex technical facts, people’s courts have established a diversified technical fact-finding mechanism based on the technical investigation officer system, with technical consultancy, expert assessors, expert assistants and technical appraisals as its important components.
4.6.3.1 Technical investigation officer system
To align with the establishment of the intellectual property courts in Beijing, Shanghai and Guangzhou, the Supreme People’s Court issued the Interim Provisions on Technical Investigation Officers on December 31, 2014, formally establishing the technical investigation officer system.131 On August 8, 2017, the Supreme People’s Court issued the Guiding Opinions on the Selection of Technical Investigation Officers to provide for the selection and qualification requirements of technical investigation officers and related procedures.132 Article 13 of the guiding opinions stipulates the following: “Other people’s court with jurisdiction over technology-related intellectual property cases may select and appoint technical investigation officers with reference to these Guiding Opinions after reporting to the Supreme People’s Court for approval.”
Article 51 of the Law on the Organization of the People’s Courts stipulates the following: “People’s courts may set up positions for judicial technical personnel based on the needs of adjudication work, to take charge of relevant issues.” Technical investigation officers are not adjudication personnel but are judicial technical personnel among adjudication assistance personnel. The technical investigation officer system has played an active role in increasing the neutrality, objectivity and scientificity of the identification of technical facts and in improving the quality and efficiency of technology-related case adjudication.
The Supreme People’s Court also formulated the Provisions on Technical Investigation Officers, which came into effect on May 1, 2019.133 These provisions contain 15 articles regarding technical investigation officers participating in different litigation procedures in the adjudication of intellectual property cases. The provisions relate to the procedure, duties, validity and legal responsibilities of such officers, as well as the types of cases, positioning of identity, appointment and dispatching of personnel, notification and recusal, work duties, the validity of technical investigation opinions, signatures on adjudication documents, and the assumption of responsibilities, among other matters. Article 1 of the provisions stipulates the following: “In the trial of intellectual property cases involving patents, new plant varieties, layout designs of integrated circuits, technical secrets, computer software, and monopoly, which have high professional and technical requirements, the people’s courts may appoint technical investigation officers to participate in the litigation activities.”
4.6.3.2 Entrusted technical appraisal
Appraisal conclusions form a type of statutory evidence in civil lawsuits. According to Article 76 of the Civil Procedure Law,
[a] party may apply to a people’s court for the appraisal of a specialized issue for the verification of a fact. When a party so applies, both parties shall determine qualified appraisers through negotiation; where such negotiation fails, the people’s court shall designate appraisers.
Where the parties do not apply for appraisal, but the people’s court deems it necessary to examine a specialized issue, it shall appoint qualified appraisers to conduct the appraisal.
Appraisal opinions belong to evidence, as stipulated in Article 63 of the Civil Procedure Law.
In addition to the Civil Procedure Law, the Interpretation of the Civil Procedure Law and the Provisions on Evidence in Civil Procedures involving Intellectual Property Rights make specific provisions on issues concerning such appraisals.
4.6.3.3 Persons with specialized expertise
According to Article 79 of the Civil Procedure Law, “[a] party may apply to a people’s court to notify person(s) with specialized expertise to appear in court and provide opinions on an appraisers’ opinions or specialized issues.” According to Articles 122–123 of the Interpretation of the Civil Procedure Law,
[a] party may, according to Article 79 of the Civil Procedure Law, file an application prior to the expiry of the time limit for producing evidence, to have one to two persons with specialized expertise to appear in court to cross-examine appraisal opinions on behalf of the party, or to provide opinions on the specialized issues involved in the fact-finding of the case.
The opinions provided in court on specialized issues by persons with specialized expertise shall be deemed as the statements of the concerned parties.
[…]
A people’s court may query the persons with specialized expertise who appear in court. With the permission of the people’s court, a concerned party may query the persons with specialized expertise who appear in court. Persons with specialized expertise who appear in court upon separate applications by different concerned parties may cross-examine each other on relevant issues involved in the case at hand.
Persons with specialized expertise shall not participate in court trial activities not involving specialized issues.
Both the Provisions on Evidence in Civil Procedures and the Provisions on Evidence in Civil Procedures involving Intellectual Property Rights provide for issues concerning persons with specialized expertise.