There are less than 500 practitioners across the country. This profession helps judges crack technical codes.
In 2014, the Supreme People's Court issued relevant regulations that clearly stated that intellectual property courts should be equipped with technical investigators.
From 2019 to 2020, technical investigators and technical consulting experts from local courts participated in the verification of technical facts in 5226 cases.
It lasted 1 hour and 40 minutes, when the trial ended, Lan Guohong's gavel fell.
Prior to this, ABB Grid Switzerland Co., Ltd. applied for a patent authorization from the State Intellectual Property Office of China for one of its communications technology solutions, and the latter rejected it on the grounds that the technology solution was not creative.
On the afternoon of October 20th, in the Grand Court of Beijing Intellectual Property Court, ABB Grid Switzerland Co., Ltd. v. National Intellectual Property Office started the trial of the administrative dispute over the refusal of the invention patent application. Lan Guohong was sitting as the presiding judge.
During the trial, the agents of both parties engaged in fierce disputes about the different technical characteristics of the patent and the existing technology, the problems actually solved, and the technical effects.
Lan Guohong guided and asked questions from time to time, showing calmness and wisdom in her gentle tone. Every time she asked her questions, she hit the nail on the head and sometimes even made the person unable to deal with it.
After the trial, Lan Guohong said that she had no relevant technical background in the communications field and was able to handle this case smoothly, thanks to the technical investigator (hereinafter referred to as the technical commissioning officer).
"Before the trial, the technical adjuster explained the network topology, IEEE1588 network synchronization protocol, communication delay, network level and other technical issues to the collegiate panel in a simple way. In the end, I spent five or six hours figuring out the technical solution of the case. If there is no technology With the help of the adjuster, this case will take more time."
Why is there such a job as a technical adjustment officer?
How do they participate in the trial of the case?
A reporter from Science and Technology Daily conducted an investigation on this.
Overcome the invisible walls of technology, looking for someone who cracks the code
Zhao Ming is one of the first judges to engage in professional trials of technical cases.
At the beginning of the 21st century, when China joined the World Trade Organization (WTO), my country revised its patent law and expanded the content of judicial review.
Faced with this new change, the Beijing No. 1 Intermediate People's Court, which had exclusive jurisdiction over such cases at that time, concentrated a group of forces to deal with administrative cases of patent authorization and confirmation.
Two experienced old judges and the young Zhao Ming formed the first patent administrative collegiate panel.
Unlike general legal cases, technical cases involve not only legal disputes, but also technical disputes.
Understanding the technology involved is the first hurdle before the judge makes a decision.
These technologies may belong to the fields of machinery, computers, communications, and medicine. They may also involve knowledge such as biology, artificial intelligence, new plant varieties, and integrated circuit layout design. Some cases are even interdisciplinary.
Facing the difficult and obscure language of science and engineering, Zhao Ming, who only had a legal background, was a little afraid of difficulties at first.
"It was really difficult at the beginning. Because I have just been exposed to intellectual property trials not long ago, and I am facing a difficult patent case. I need to be familiar with patent law and technical issues."
"The two judges gave me a lot of help in understanding the patent law and technical interpretation, and I quickly entered the role." Zhao Ming recalled, "They encouraged me that even people with a technical background can only understand a certain field of their own. Everyone is the same in other unfamiliar fields. You have to dare to interpret new technologies."
At that time, in order to solve technical problems, the judge would use the professional knowledge of the jurors or ask the agents of both parties to fully state the technical disputes.
Nevertheless, it takes time and effort to ascertain the technical facts.
“It takes a long time to read related patent documents, sued decisions, indictments, etc. Sometimes technical documents in certain fields are very stressful to read.” Zhao Ming recalled.
To this day, many intellectual property judges still face this kind of dilemma: How to overcome the invisible technical fence when trying technical cases?
Some countries fell into this situation earlier than China, and their respective outlets are also different.
In the United Kingdom and the United States, expert witnesses are mainly used to help judges understand technology; Germany relies on technical judges, that is, judges themselves are experts in a certain field of science and engineering; Japanese and Korean courts set up positions of technical adjustment officers to assist The judge solves technical problems.
In fact, intellectual property judges in our country can ascertain technical facts through judicial appraisal, expert witnesses or expert jurors, but these mechanisms have their own shortcomings.
For example, judicial appraisal costs are high and time is long; and expert witnesses are generally applied by one of the parties and the applicant bears the relevant court fees, so the opinions of expert witnesses may be inclined; the expert juror system is in the scope of application, recusal and avoidance. The management mechanism and other aspects are not perfect, especially the second-instance court is difficult to apply.
For this reason, after Chinese legal professionals visited Germany, Japan and South Korea, they concluded that they learned from the experience of neighboring countries Japan and South Korea.
"If you train technical judges like Germany, the cycle is long and the cost is high, and it cannot meet the actual needs in the short term. As a trial auxiliary system, the technical adjustment officer system can play a transitional role and has little impact on the original legal system." Guangzhou Said Zou Xiangqiu, judge of the Intellectual Property Court and Director of the Technical Investigation Office.
At the end of 2014, Beijing, Guangzhou, and Shanghai successively established intellectual property courts.
At the same time, the "Interim Provisions on Several Issues Concerning the Participation of Technical Investigators of Intellectual Property Courts in Litigation Activities" issued by the Supreme People's Court clearly stated that intellectual property courts should be equipped with technical investigators.
According to this provision, the technical commissioning officer can make suggestions on the scope, order, and methods of the investigation, focusing on the focus of technical factual disputes, and can also participate in investigations and evidence collection, inquests, preservation, as well as inquiries, hearings, pre-trial meetings, and trial sessions.
A few months later, the first case in which my country appointed a technical commissioning officer to appear in court-Eli Lilly and Company v. Changzhou Huasheng Pharmaceutical Co., Ltd. for infringement of invention patents was officially opened in the Intellectual Property Tribunal of the Supreme People's Court.
During the trial of the case, technical adjuster Ge Yongqi participated in the identification of technical problems and communicated with both parties and lawyers.
In the end, the judge ruled that Huasheng Pharmaceutical Co., Ltd. did not infringe on Eli Lilly’s patent rights, and corrected the errors in the determination of facts and the application of law in the first instance.
In 2019, the "Several Provisions of the Supreme People's Court on the Participation of Technical Inspectors in the Litigation Activities of Intellectual Property Cases" (hereinafter referred to as the "Provisions") were promulgated. The "Provisions" clarified that the people's courts hearing technical intellectual property cases shall implement the system of technical adjustment officers.
This marks the first time that my country has established a system of technical adjustment officers.
According to Liao Jibo, director of the Intellectual Property Court Litigation Service Center of the Supreme People’s Court, the Supreme People’s Court has continuously promoted the improvement of a diversified technical fact finding mechanism, established a national court technical investigation talent pool and a national sharing mechanism, and has already stored more than 450 technical commissioners and technologies. Consultation experts, covering more than 30 technical fields, initially realized nationwide joint construction and sharing, and dispatched on demand, effectively alleviating the problem of fact finding in technical cases.
From 2019 to 2020, technical adjustment officers and technical consulting experts from local courts participated in the technical fact finding work of 5226 cases.
Clarify technical disputes in the case and defend the legitimate interests of the public
In February of this year, Zhu Qi went to the Beijing Intellectual Property Court as a technical transfer officer for a one-year term.
Soon after coming to the court, Zhu Qi received a case with more than 1,000 pages of evidence alone.
She was soaked in the pile of documents for several days. After lying down at night, she felt that her brain was still running at high speed: What is the principle of the technology mentioned by both parties in the lawsuit?
What are their controversies?
What caused the controversy?
These issues must be clarified as soon as possible and then reported back to the judge in plain language.
In order for the judge to understand technical disputes, Zhu Qi always puts a lot of thought into it.
For example, when explaining "carrier aggregation" to the judge, she compares "wave" to a train and compares information to passengers. "Carrier aggregation" is how to arrange passengers to make space utilization higher.
Zhao Ming still remembers that the first time she cooperated with the technical commissioning officer was because of a chemistry case.
It is difficult for non-professionals to grasp the characteristics and interaction relationships of a series of compounds such as alkyl sulfide, alkyl acrylate, and nitrogen oxide involved in the case.
Due to the complexity of the case, the judge asked a technical adjuster in the field of chemistry to intervene.
"The technical adjuster introduced the application, comparative documents, and background technology in very simple language, and we heard it clearly in half an hour, and we got to the focus of technical controversy." Zhao Ming said.
Clarifying the focus of technical disputes before the court session is conducive to saving court time.
"In the court, the energy of both parties is concentrated on the focus of technical disputes, and the defense is more targeted. During the post-court deliberations, the technical investigator will also participate, and the judge can, based on the technical review opinions given by the technical investigator, Quickly distill the legal issues and make a judgment." Zhao Ming said, "If you understand the inquiry yourself, it may take a few months after the court trial to conclude the case, but it only took less than a month for the case. Technologist. The system is of great help in improving the efficiency and quality of trials."
The Guangzhou Intellectual Property Court deals mostly with civil cases.
In 2020, a company in Guangzhou filed a complaint with the Guangzhou Intellectual Property Court that the design of its drone sensor was infringed by some self-employed individuals.
The company's proof materials were sufficient, and the self-employed in the dock did not even explain the product structure and technical principles when they appeared in court, and they were almost in a state of silence.
As the technical adjuster of this case, Lian Jingfeng must abide by neutrality.
In order to ascertain the technical facts, he consulted various technical materials and found subtle differences in technical characteristics. Through the comparison of drone flight trajectories, he found out the different technical effects of the subtle differences and made it clear: the alleged infringing technology There is a substantial difference between the scheme and the patent involved.
In the end, with the exception of one mediation, the plaintiff withdrew the prosecution of the remaining 15 cases, and the self-employed involved in the case got rid of the fear of facing large compensation.
Regarding this case, Lian Jingfeng still remembers, "Technical investigators must help protect the achievements of scientific and technological innovation, but also ensure that the scope of intellectual property protection is compatible with the degree of technological contribution, and defend the legitimate interests of the public."
However, the judge emphasized that according to the relevant content of the "Regulations," the technical adjustment officer is a trial assistant who provides technical advice, and the judge is ultimately in the hands of the trial power.
Insufficient number of equipment, shortage of technical investigators
Wang Hao worked for China Coal Mining Corporation. In 2019, he started to work as a part-time technical transfer officer in the Beijing Intellectual Property Court and participated in more than 70 cases in the machinery field.
Part-time technical adjustment officer is a feature of Beijing Intellectual Property Court.
Part-time technical adjustment officers generally come from patent examination departments, universities, enterprises or scientific research institutes, and only participate in the technical examination of the court when there is a case.
The communication and technical adjustment officer is usually a person sent by the State Intellectual Property Office or the Examination Cooperation Center.
At present, there are 60 technical adjustment officers in the institute, 58 part-time technical adjustment officers including Wang Hao, and the other 2 are communication technical adjustment officers.
Counting from the number of technical adjustment officers in 2015, in the past six years, a total of 200 technical adjustment officers in the Beijing Intellectual Property Court have participated in the verification of technical facts in 2,872 cases.
"Part-time technical transfer officers are not divorced from their own jobs. They have a clearer understanding of the current status and development of technology in the front line of research and development and production. At the same time, part-time technical transfer officers have a certain term of office and can be replaced regularly, which is conducive to better and more suitable. The technical adjustment officer of Beijing is selected.” said Zhou Liting, judge of the Beijing Intellectual Property Court.
The Guangzhou Intellectual Property Court took a different path: the establishment of technical adjustment officers and the status of civil servants.
Lian Jingfeng is a full-time technical tuning officer.
"I think a full-time technical adjustment officer is more convenient for personnel management, helps dispel public doubts, and is more in line with the original intention of the policy." Zou Xiangqiu said.
But the actual pressure is also obvious.
Zou Xiangqiu's previous research found that in Japan, the ratio of judges and technicians is between 1:1 and 2:1, while in South Korea, the ratio is 1:1.6.
For example, the Korean Chartered Court has a total of 17 judges, with as many as 27 technicians.
“Because of the limited establishment, our court’s 27 judges are assigned only 6 technical tuning officers, of which 2 are also assistant judges.” Zou Xiangqiu said helplessly, “In our court, a judge hears more than 500 cases each year, most of which involve In civil disputes, technical commissioners are far from enough."
Although the Beijing Intellectual Property Court has resources for part-time technical officers, it also faces the problem of "more cases and fewer people".
“Part-time technical adjustment officers have their own jobs, and the time and energy that can be invested in court technical investigation work is relatively limited. Most part-time technical adjustment officers accept about 8-10 cases a year, and the Beijing Intellectual Property Court hears on average every year There are about 3,000 technical cases such as patents and computer software, and this number is still growing." Zhou Liting said.
Faced with the huge number of cases, technical investigators are somewhat stretched.
"The current number of technical adjusters cannot meet the ever-increasing demand for technical cases. This is one of the restrictive factors that affect the efficiency of technical cases." Lan Guohong said.
Lack of a corresponding guarantee mechanism, and the system of technical adjustment officers needs to be improved
According to regulations, the technical adjustment officer cannot vote on the results of the case, and the technical investigation opinions provided by the technical adjustment officer are not evidence and cannot be made public.
In judicial practice, the technical review opinions of the technical commissioning officer are generally adopted by the collegiate panel.
Zou Xiangqiu said that this is enough to explain the substantive influence of the technical commissioning officer on the determination of the facts of the case.
Some scholars wrote an article discussing: Will the technical adjustment officer become the "shadow judge" in the trial of intellectual property cases?
In this regard, Zhou Liting called on the trial team to remain conscious and sober at all times.
"The collegiate panel assumes responsibility for the determination of technical facts in accordance with the law, and must think independently and be a good gatekeeper."
Relevant regulations also released a signal prohibiting cross-border.
If the technical commissioning officer violates the laws and relevant regulations related to the trial work, embezzles and accepts bribes, practices favoritism, and deliberately issues false, misleading or major omissions and false technical investigation opinions, he shall be investigated for legal responsibility; if a crime is constituted, he shall be investigated for criminal responsibility in accordance with the law.
The judge believes that the key to the technical adjustment officer system is to clarify the position of the technical adjustment officer. What role they should play, what tasks they undertake, and what the work boundaries are should be further clarified.
In the Guangzhou Intellectual Property Court, after a certain period of time, a technician wants to be a judge.
Zou Xiangqiu understands this consideration very well, because the technician lacks a clear and exclusive career growth path, and the judge is the core post of the court after all.
In fact, the systems involving the selection, hiring, promotion, and funding allocation of technical transfer officers are still blank.
Lian Jingfeng can realize that there are many uncertainties in the system of technical adjustment officers as a new thing.
"The seconded technicians will leave the court after working for a period of time and return to their original posts to continue working. The full-time technicians belong to the court's internal system, but their career planning is not perfect and the court needs to support their later development."
In the interview, Zhou Liting stated many times that she hoped to broaden the source channels of technical officers and improve the corresponding guarantee mechanism.
"At present, we mainly ask relatively neutral institutions to recommend technical adjustment officers. What other channels can we obtain technical adjustment officers from? How to ensure the time for part-time technical adjustment officers to participate in the trial? The more detailed the operation process in this regard, the better."
After groping for more than half a year in the position of a technical adjustment officer, Zhu Qi knows that it is not easy.
Once, she took over a case involving neutron capture therapy. In order to understand the technical principles of the paired free cavity, she specifically consulted experts in related fields.
Zhu Qi said frankly: "This is an era of rapid technological change and continuous integration of new technologies. If the technicians do not charge at any time, they will not be able to keep up with the pace of technological development."
Wang Hao is also impressed by the rapid changes in technology. He suggests to develop a training and communication plan for technicians so that they can master the cutting-edge dynamics of technology.
Under the influence of technology, judges have to evolve themselves.
In the intellectual property court, one tacit thing is that judges with a technical background are more sought-after.
As of September this year, there are 42 judges in the Intellectual Property Court of the Supreme People's Court, 34% of whom have a combined academic background in science and engineering and law.
Occasionally, she is anxious because she can't keep up with the pace of technology, but Zhou Liting is not afraid.
"Understanding technology is very important, but in the end we still have to rely on the law to make a trial. Time will make the judge sharp. The judge must have such confidence that we can definitely make a just trial."