The China National Intellectual Property Administration (CNIPA) published the "Measures for the Administration of Technical Investigators for Administrative Protection of Intellectual Property Rights" (hereinafter referred to as the "Measures") in Sept. 2023. Meanwhile, CNIPA also published its interpretation of the Measures as follows:

1. Background

Most of the patent and integrated circuit layout design infringement dispute cases are difficult and complex, highly professional and technical, and involve a wide range of fields. A large number of technical factual issues need to be determined. In the practice of intellectual property administrative enforcement, adjudication, arbitration, and mediation, there is an urgent need to introduce a technical investigator system to assist intellectual property administrative case handlers in ascertaining technical facts. By the end of 2022, 31 provinces (autonomous regions and municipalities) have launched the "technical investigator" mechanism, and a total of more than 700 technical investigators have been appointed.

2. Main content

The "Measures" contain 48 articles, which mainly provide specific provisions on the positioning, responsibilities, appointment, rights and obligations, assignment and dispatch, and procedures and specifications, etc..

(1) Responsibilities. Technical investigators perform the following duties in the handling of intellectual property administrative cases: make suggestions on the focus of disputes on technical facts and the scope, sequence, and methods of investigation; participate in investigation and evidence collection and inspection; participate in inquiries and oral hearings; put forward technical investigation opinions; assist case handlers to organize appraisers and professionals in relevant technical fields to provide opinions; attend relevant meetings on case handling; and other related work.

(2) Rights and obligations. The technical investigator independently issues technical investigation opinions and does not accept inquiries from the parties when participating in the case handling process. The investigator should remain objective and neutral regarding the technical facts involved in the case. The investigator has the obligation to keep confidential the information learned during the case handling process and is responsible for intellectual property administrative cases. In principle, there is no obligation to participate in administrative review or administrative litigation that occurs after the case is closed.

(3) Assignment & Deployment. When handling intellectual property administrative cases, if it is necessary to seek the opinions of a technical investigator to ascertain technical facts, a technical investigator may be assigned to participate in the case handling. If the technical solution involved in the case is major, difficult, complex, or involves multiple technical fields, two or more technical investigators may be assigned. Both the CNIPA and local intellectual property management departments can dispatch technical investigators from the national technical investigator information database based on case handling needs. The local intellectual property management department first submits an application for transfer, and then the CNIPA conducts a formal review of the application. After passing the review, the intellectual property management department responsible for appointment decides to the specific candidate to undertake the task.

(4) Notice. Within three working days from the date when the technical investigator is determined or changed, the intellectual property management department shall promptly notify the parties and inform the parties of their right to apply for the revocation of the technical investigator in accordance with the law.

(5) Inquiry. With the consent of the person in charge of the case, the technical investigator may inquire about technical facts from the parties and other relevant personnel during the process of investigation and evidence collection, inspection, and oral hearing.

(6) Issue technical investigation opinions. The technical investigator shall issue technical investigation opinions on the technical issues involved in the case before the case is discussed or the investigation is concluded. The technical investigation opinions should state the following contents: basic information about the case such as case number, cause of action, and parties' circumstances; summary of the technical issues involved in the case; opinions and reasons for controversial technical issues, and responses to the parties' existing technical defenses and other claims ; contents and sources of relevant reference materials; other necessary content related to technical issues of the case.

Source:
https://www.cnipa.gov.cn/art/2023/9/25/art_66_187783.html (Chinese)
https://www.cnipa.gov.cn/art/2023/9/25/art_75_187768.html (Chinese)