The public prosecution service should take the initiative to adapt to the new situation and continuously upgrade the level of specialization, sophistication and synergy in the criminal prosecution of intellectual property rights by strengthening the examination of evidence, harmonizing the application of the law and innovative working mechanisms, so as to provide solid judicial guarantees for the development of new quality and productivity through the performance of high-quality prosecutorial functions in order to create a market, rule of law and internationalized leading business environment。
Strengthening the professional workforce by creating specialized case teams, creating a pool of intellectual property inspectors and expert consultants, updating the knowledge structure through regular training, exchange seminars。
The importance of criminal justice protection of intellectual property rights has become increasingly important as innovation-driven development strategies are advanced and intellectual property offences become more specialized and complex. In recent years, the prosecution service has continuously stepped up its efforts to combat crimes against intellectual property, but in practice there are still cases of acquittal or risk of acquittal due to issues such as examination of evidence, application of the law, etc., reflecting the many practical challenges facing the criminal prosecution of intellectual property. In this regard, the public prosecution service should take the initiative to adapt to the new situation and, through a multi-pronged approach involving enhanced examination of evidence, uniform application of the law and innovative working mechanisms, continuously upgrade the level of specialization, precision and synergy in the criminal prosecution of intellectual property, with high-quality inspections providing solid judicial guarantees for the creation of a market, rule of law, internationalization and first-class business environment and the development of new quality productivity。
Difficulties in handling intellectual property criminal cases and causes parsed
Criminal cases relating to intellectual property, because of their professional nature and the complexity of their legal relationship, usually face three challenges in the process:。
The examination of the evidence was difficult to find, particularly with regard to the standard of proof of technical facts. In cases such as violations of business secrets, the proof of core facts is highly dependent on professional expertise, which itself is often the focus of controversy. On the one hand, evidence of “non-publicity” tends to follow the “documentary search + expert opinion” model, and the comprehensiveness of the scope of the search, the suitability of expert qualifications and the reliability of conclusions are often questioned. On the other hand, the “sameness” between tort products and commercial secrets found that there was a lack of objective and uniform criteria for technical validation, which could easily be contested in court proceedings. In addition, in new types of offences, such as the sale of counterfeit trademarked goods on the internet, the exclusion of false transaction records such as “brushing orders” to accurately determine the amount of the offence also raises greater requirements for the examination of evidence。
The law applies to border determination, and cross-cutting issues are highlighted. Intellectual property protection cuts across the three main areas of civil, administrative and criminal law, but the applicable standards of law between them are not yet fully harmonized. For example, differences exist between civil and criminal law in defining key concepts such as the “adjustment of trade secrets and optimization” of the use of “same trademarks”, which may lead to different legal assessments of the same conduct。
Professional fact-finding is difficult and too dependent on outside expertise. Intellectual property cases, especially in the areas of high-end manufacturing, biomedicine and software, often lack the relevant technical background, and technical fact-finding is highly dependent on outside expertise. However, the current level of the forensic profession is uneven, and the existence of procedural irregularities, inadequate reasoning and even conflicting conclusions in part of the assessment seriously affects the probative power of evidence。
These dilemmas are the result of a combination of institutional mechanisms, capacity-building and the social environment。
The evidence system is structurally short. The traditional “non-publicity” certification model is disconnected from the mass of the information age, multiple open channels and makes it difficult to effectively cover informal open information such as global patent databases, open source platforms, technical forums, etc. The absence of nationally harmonized, authoritative quality control standards and effective regulatory, accountability and accountability mechanisms for forensic and value assessments has led to a lack of credibility of expert opinions and even to the phenomenon of “judiciary justice”。
Inadequate coordination within the legal system. Civil, administrative and criminal laws on intellectual property are naturally different in terms of legislative purpose, scope of protection and standard of proof. Criminal law, as a safeguard law, was modest and its threshold of intervention should be higher than that of civil and administrative law. In practice, however, the simple application of conceptual standards of civil or administrative law may lead to an inappropriate expansion or narrowing of the scope of criminal action。
Specialized case support systems are not yet adequate. In the face of technology-intensive cases, it is difficult for prosecutors to keep up with technological developments. There is still room for improvement in the application and effectiveness of existing systems such as expert advice and technical investigators in practice。
Responses and recommendations for overcoming the challenges
To meet the challenge of improving the quality of criminal prosecution of intellectual property rights, there is a need to create synergies in three dimensions: evidence review, legal application and institutional innovation。
Strengthen the examination of evidence and build a scientifically rigorous system of proof. Promote the transition of the evidence review model to “technical validation”. For “non-publicity” determinations, the construction of a “three-step test” could be explored: a scope test requiring access to major global patent databases, academic journals, industry standards and open-source communities, etc.; a test of homogeneity encouraging the use of reliable technical means such as hashi-matching, source code analysis, etc.; and a counter-proof test requiring an expert opinion to respond effectively to possible public information leads from the defence to enhance its confrontational nature。
(d) improving the mechanisms for guiding and reviewing forensics. The public prosecution service shall direct the investigative authorities to provide comprehensive and standardized evidence about the elements of the crime. In reviewing expert opinions, it is important not only to review the legality of the form, but also to examine in substance the scientific nature of its methods, process compliance and the reliability of its conclusions. With regard to reliance on high commercial secrecy, efforts should be made to improve accreditation procedures, establish uniform standards and explore mechanisms for the participation of expert witnesses to enhance transparency and credibility。
Use of generic proof techniques to respond to complex cases. Evidence of individual cases of widespread sales and large numbers of violations is not necessary. Based on the experience gained in guiding cases, procedural efficiency can be enhanced by the use of broad evidence chains such as sample identification, determination by administrative authorities, combination of industry certificates and the absence of counter-proofs by perpetrators。
Clear legal boundaries and promote harmonization of standards for adjudication. Maintain independent judgement of criminal law and exercise due diligence in legal interpretation. In criminal cases relating to intellectual property, the relevant constituent elements should be properly interpreted for the purpose, under the principle of criminal law. For example, the determination of “same goods/services” should be combined with a combination of functions, uses, objects of consumption, etc., rather than simply whether the name is the same. The expansive or constrictive interpretation of legal elements must be consistent with social justice and the expectations of the general public。
Strengthening research and guidance on priority issues. The supreme people's court, the supreme people's procuratorate and the supreme people's procuratorate can harmonize the judicial measures by issuing typical cases, developing guidelines for the conduct of cases, etc., in response to such controversial points as “proximity”, “converting the rate of technical contribution”, “calculating the amount of damages”. For example, a typical case recently published by “two heights” provides clear guidance on the identification of elements such as “same service” “same trademark” “dissemination through information networks”。
(c) deepen the connection between the execution of the death penalty and promote its integrated functioning. The prosecution service shall, depending on the centralized performance of the intellectual property inspection function, examine the possible criminal, civil, administrative and public interest issues simultaneously in individual cases. Full implementation of a two-way mechanism for the delivery of sentences, timely transfer to administrative authorities of persons who do not meet the standards for criminal prosecution but may be in violation of the law, and exploration of ways to link criminal non-prosecutors and accused information to a system of serious breach of trust lists for market supervision, with a view to achieving a closed disciplinary circle。
Innovative working mechanisms and specialized case management. Explore the system of criminal incidental civil proceedings for intellectual property. Intellectual property rights are both personal and property rights, and the impairment of value resulting from the infringement shall be regarded as “material loss”. In the context of the court's “tribunal” reform, it is important to move comprehensively away from the institution of incidental civil proceedings in criminal cases relating to intellectual property rights, in order to improve the efficiency of proceedings, avoid conflicting decisions and maximize the protection of the economic interests of the rights-holders. The public prosecution service may inform and guarantee the right to initiate incidental civil proceedings, on the basis of the system of notification of the rights and obligations of rights holders in intellectual property criminal cases。
It is important to strengthen professional staff and intellectual support. On the one hand, specialized casework teams are to be created, a pool of intellectual property inspectors and expert consultants are to be created, and the knowledge structure is to be updated through regular training, exchange seminars. On the other hand, high priority should be given to digital prosecutorial empowerment, by building models for monitoring intellectual property litigation, by opening data barriers to administrative enforcement and court proceedings, and by using large data analysis to identify case patterns, monitor leads and improve case intelligence。
:: improvement of the “prosecutional integration” coordinated case management model. (c) to strengthen the coordination of the criminal, civil, administrative and public interest prosecution services within the public prosecution service, and to strengthen external communication with the courts, public security organs and administrative law enforcement agencies. A common understanding of standards of evidence, application of the law, procedural interfaces, etc., is reached through joint meetings, joint research, signing of documents, etc., in order to create protection synergies。
