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Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the writs of assistance. But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience, there was also a rich English experience to draw on. Every mans house is his castle was a maxim much celebrated in England, as Samans Case demonstrated in 1603. A civil case of execution of process, Samans Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the Kings agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the Kings process. Most famous of the English cases was Entick v. Carrington, one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes polemical pamphlets attacking not only governmental policies but the King himself.

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a persons papers rather than only those alleged to be criminal in nature contrary to the genius of the law of England. Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British Constitution, and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize prohibited and uncustomed goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

The language of the provision that became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madisons introduced version provided The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. As reported from committee, with an inadvertent omission corrected on the floor, the section was almost identical to the introduced version, and the House defeated a motion to substitute and no warrant shall issue for by warrants issuing in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendments two clauses must be read together to mean that the only searches and seizures which are reasonable are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are reasonable searches under the first clause that need not comply with the second clause. This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute that has run most consistently throughout the cases involving the scope of the right to search incident to arrest. Although the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

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Fourth Amendment: Historical Background | Constitution ...

CASE PREVIEW ByHoward M. Wasserman on Oct 10, 2021 at 1:27 pm

Civil claims seeking damages for constitutional violations arising in the criminal-justice process require the plaintiff to show favorable termination, meaning the criminal proceedings were terminated in favor of the accused (the plaintiff in the subsequent civil action). Thompson v. Clark, to be argued Tuesday, considers whether a 42 U.S.C. 1983 claim for malicious prosecution under the Fourth Amendment requires a resolution that affirmatively indicates innocence, as the lower court held, or that it formally ended in a manner not inconsistent with innocence.

In January 2014, Larry Thompson lived in Brooklyn with his wife, Talleta Watson, their newborn daughter, and Thompsons sister-in-law, Camille Watson, who has cognitive delays.

Unbeknownst to Thompson, Camille called 911 late one evening, reporting red rashes on the babys buttocks and describing them as signs of abuse. EMTs arrived at the apartment, spoke with Thompson, then left without examining the baby. Police officers returned to the apartment with the EMTs; when Thompson refused to allow them into the apartment, they pushed through the door, tackling and pinning him to the ground. EMTs examined the baby and concluded the red marks were diaper rash, but took her to the hospital, where medical personnel confirmed that there were no signs of abuse.

Pagiel Clark was one of the officers who responded to the call and entered Thompsons apartment. Clark signed a criminal complaint against Thompson for resisting arrest and obstructing a governmental investigation. The report stated that Thompson had violently resisted: slapped an officer, flailed his arms, and physically struggled against the officers. Thompson was detained for two days before being released on his own recognizance at an arraignment. The prosecution offered an adjournment in contemplation of dismissal, which would have led to records of the prosecution being sealed without punishment; Thompson refused. Thompsons defense attorney orally moved to dismiss the charges for facial insufficiency; the court ordered submission of a written motion. The prosecution then notified defense counsel it would dismiss the charges. One week later, the prosecution dismissed the case on its motion in the interest of justice and the court dismissed the matter.

Thompson sued for damages under Section 1983, which allows individuals to sue state actors for violating their constitutional rights. Of the several claims in the lawsuit, the one at issue is against Clark for an unreasonable seizure pursuant to legal process (analogous to the common law tort of malicious prosecution) under the Fourth Amendment. The district court entered judgment as a matter of law in favor of Clark, concluding that Thompson failed to show the criminal charged were dismissed in a manner affirmatively indicative of his innocence. The U.S. Court of Appeals for the 2nd Circuit affirmed, because the record in the criminal proceeding provided no reasons for the dismissal and Thompson failed to show his innocence of the charges.

Thompson begins with the purposes of the favorable-termination requirement avoiding parallel criminal and civil proceedings and preventing individuals from using civil litigation to collaterally attack final criminal judgments. When criminal charges have been dismissed prior to trial, the subsequent civil action does not implicate either concern, as there is no parallel criminal proceeding and no judgment to attack. Under the Supreme Courts precedents, a plaintiff can show favorable termination when a conviction later was invalidated or when he has been acquitted following trial. Neither affirmatively indicates a persons actual innocence. If acquittal after trial or a later-invalidated conviction after trial establish favorable termination, Thompson argues, so must the successful dismissal of charges before any trial or conviction.

Thompson bolsters his argument through the state of the law for the analogous tort of malicious prosecution as of 1871, when Congress enacted Section 1983. Relying on the U.S. Court of Appeals for the 11th Circuit in Laskar v. Hurd, Thompson argues that one state court at the time required affirmative indications of innocence and a clear majority did not limit favorable termination. American courts followed English precedent that found favorable termination when the criminal proceeding no longer was pending, absent a judgment or admission of guilt; that included cases in which criminal charges were dismissed or abandoned.

Finally, Thompson identifies practical problems with the 2nd Circuits approach, labeling it incoherent, perverse, and difficult to administer. It makes no sense, he argues, to require a civil plaintiff to show that the criminal proceeding indicated his innocence, whereas the criminal case asks whether the prosecution established guilt beyond a reasonable doubt. This requires a criminal defendant to prove his innocence during the prosecution, contrary to the presumption of innocence. The problem is exacerbated in this case, where the states dismissal of the prosecution stripped Thompson of any opportunity to present evidence of his innocence. It would force a defendant in Thompsons position he alleges he faced a meritless prosecution on unfounded charges based on fabricated evidence to object to dismissal of the charges and to go to trial to preserve a future Section 1983 claim. An individual facing weaker criminal charges, those more likely to be dismissed, is less able to bring a Section 1983 claim than an individual facing charges strong enough to warrant a trial and possible conviction.

The United States appears as amicus curiae in support of Thompson and urging reversal of the 2nd Circuit.

It argues that the common law tort most analogous to Thompsons claim for an unreasonable seizure pursuant to legal process is malicious prosecution. Because the tort claim required favorable termination, so must the parallel Section 1983 claim. This preserves the common law analogy and fulfills the purposes of preserving finality, avoiding parallel litigation, and preventing civil litigation from becoming a collateral attack on a criminal conviction.

But termination of the criminal proceedings, the government argues, can be favorable without affirmative indications of innocence. That requirement has no basis in common law principles as of 1871. Despite variations across states, the general rule was that favorable termination meant that the prosecution being challenged had been disposed of and could not be renewed. Affirmative indications of innocence are not necessary to preserve finality or to preclude parallel proceedings. And the civil action does not function as a collateral attack on a conviction so long as the criminal proceeding ended in a manner not inconsistent with innocence. Nor are affirmative indications necessary to protect Fourth Amendment values. The Fourth Amendment question is whether criminal proceedings were initiated without probable cause, not how they ended; while the latter determination may inform the probable-cause question, the focus is on what the defendants knew at the earlier point in time.

Courts justify a favorable-termination requirement as a mechanism for filtering non-meritorious claims, by barring those lacking some demonstrated likelihood of success. While acknowledging reasonable concerns for frivolous claims, the United States argues those considerations do not justify an indications-of-innocence requirement, especially given its inconsistency with common law. Other requirements such as the plaintiffs obligation to prove the absence of probable cause and the defense of qualified immunity enable courts to stop false claims at the outset.

Clarks brief focuses on precedent issues that allow the court to affirm in the simplest way, without having to decide the meaning of favorable termination.

Clark argues that Thompson did not go to trial on a claim of unreasonable seizure-through-legal-process, although he could have. Instead, Thompson pursued a Fourth Amendment malicious-prosecution claim, alleging a seizure prior to initiation of process based on Clark signing the criminal complaint. But the Supreme Court has never recognized such a claim, and Clark urges it to hold that no such claim exists. Clark identifies a mismatch between malicious prosecution, which focuses on whether a police officer influenced a prosecutor into pursuing a criminal case, and the Fourth Amendment, which focuses on whether a police officer caused a seizure by ordering pretrial detention. The seizure Thompson complains of is his initial arrest, which ended following his arraignment and release on his own recognizance.

To the extent Thompson pursues a newly recast Fourth Amendment claim based on a post-arraignment seizure, Clark argues, the elements of such a claim may not include the favorable-termination requirement the court has been asked to define. The courts prior cases requiring favorable termination were due process cases, not Fourth Amendment cases. Lower courts are divided on whether the latter require favorable termination. Clark urges the court to clear the decks by confirming the absence of such a requirement or by dismissing this grant of certiorari as improvidently granted.

If Thompsons Fourth Amendment claim exists as he argues it and if it requires favorable termination, Clark argues, the 2nd Circuit applied the correct standard and the court should affirm. The question of what favorable termination required was unsettled at common law. Some courts required an affirmative ruling in favor of the accused, such as an acquittal, or a showing that the criminal charges lacked merit. No rule was so well-settled in 1871 that the court can presume Congress intended to adopt it. With no settled rule as of 1871, the court can look at post-1871 sources; treatises, a growing number of state courts, and seven of eight federal circuits have found that malicious prosecution claims under Section 1983 require indications of innocence.

Finally, Clark identifies policy concerns supporting an indications-of-innocence requirement. Such a requirement filters claims that have not already demonstrated some likelihood of success. It frees prosecutors to dismiss criminal charges for many reasons having nothing to do with the merits of the case, without creating the anomaly that the prosecutors professional and discretionary choice to drop charges subjects the arresting officer to civil liability.

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Favorable termination and indications of innocence in Section 1983 malicious prosecution claims - SCOTUSblog

The widow of a disabled veteran shot and killed by deputies serving him with involuntary commitment papers in 2020 filed a federal lawsuit last month against Cumberland Countyand the deputies who shot her husband.

Sabara Fisher-Roberts, wife of Adrian Roberts, 37, filed the action in U.S. District Court on Sept. 3, alleging the deputies illegally entered Roberts' home and "shot him dead" while attempting to serve the order she'd requested.

More: Cumberland County deputy identified in August fatal shooting

Roberts enlisted in the U.S. Army in 2001 and was honorably discharged in 2005 after he was deployed to the Middle East as part of Operation Iraqi Freedom, the lawsuit states.

He was receiving 100% disability from the U.S. Army for issues related to a head injury he sustained while deployed to Iraq and for post-traumatic stress disorder.

In 2012,Roberts began seeking treatment for his mental health issues, which included in-patient stays related to feelings of paranoia.

In October of 2014, he was diagnosed with schizoaffective disorder, auditory hallucinations, PTSD, and depression, the lawsuit states.

Roberts actively continued to seek treatment up until his death in 2020, the lawsuit states.

In June 2020, about two months before his death, Robertshad a virtual visit with the VA for a mental health follow-up and medication management, during whichhe reported that COVID-19 and the riots following the death of George Floyd were causing hypervigilance, paranoiaand flashbacks, the lawsuit states.

In the weeks leading up to his death, the lawsuit states, Roberts was becoming increasingly paranoid and his wife was attempting to get him into treatment

After an unsuccessful attempt by VA mobile crisis unit to make contact with Roberts in order to evaluate him, Fisher-Roberts went to a magistrate to issuean involuntary commitment order, which was to be carried out by the Cumberland County Sheriff's Office.

More: Family vigil held for man killed by sheriff's deputy

Fisher-Roberts informed the magistrate and the Sheriff's Officethat her husband was suffering from multiple mental illnesses and that there were no firearms or other people in the house with her husband, the lawsuit states.

"The magistrate informed Ms. Roberts that she should be present when the deputies go to open the door because 'they cant force their way in,' the complaint.

But while Fisher-Roberts was retrieving a key from a relative to enter the home, the sheriff's office deployed a SWAT team to the house to serve the involuntary commitment order, according to the complaint.

"Defendants (deputies) P.A. Hernandez, P. Sansome, J. Evans, D. Doody, L. Fermin, R. Murphy, R. Stallings, and C. Parker equipped themselves with body armor and M4 assault rifles to serve an involuntary commitment order on a disabled, mentally unstable, unarmed veteran," the lawsuit states.

Upon arrival, deputies determined that Roberts was in the house, but refused to open the door.

"Upon entering the home, the deputies opened fired and killed Adrian Roberts," the complaint states.

According to the Cumberland County Sheriff's Office at the time of the shooting, Roberts allegedly "charged" at the deputies with a machete.

More: Cumberland County deputies shoot man allegedly armed with machete

The lawsuit alleges that the deputies violated Roberts' Fourth Amendment rights by unlawfully entering his house and using "excessive and deadly force" which resulted in Roberts' death.

"The excessive and deadly force used by the Deputy Defendants was not objectively reasonable, justified, nor was it necessary under the circumstances," the lawsuit states.

The lawsuit also alleges that the deputies violated the Americans With Disabilities Act by failing to "provide reasonable modifications to its policies and practices to accommodate Adrian Roberts disability-related needs when attempting to serve the involuntary commitment order."

Fisher-Roberts is asking fordamages in excess of $10 million.

Crime Reporter Jack Boden can be reached at jboden@gannett.com.

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Widow of disabled veteran killed by deputies files federal lawsuit - The Fayetteville Observer

The Indiana Department of Child Services won a judgment from the U.S. District Court of the Northern District of Indiana on Friday following allegations from a man who claimed a caseworker entered his home to take photos without permission, which resulted in the removal of his children.

Homeowner Iredell Sanders sued DCS in August 2020 after one of its caseworkers, April Monique Jones, entered his house in June 2016 and allegedly took pictures without his consent.

Sanders alleged that after investigating the conditions of his home following Jones visit, DCS removed his children. He therefore argued Jones entry onto his property violated his Fourth Amendment rights because it was without probable cause and consent.

He also sought $124 million in damages in addition to a cease-and-desist order.

Before filing the suit at hand, Sanders filed a similar suit solely against DCS in April 2019, alleging DCS investigated him, took photographs of the home, and questioned his children, which resulted in his children being taken away and being placed with a guardian.

In that case, DCS was granted its motion to dismiss and the Northern District Court found Sanders was barred from suing DCS under the Eleventh Amendment, which the 7th Circuit affirmed.

Sanders pared down the number of defendants in his August 2020 suit from 15 to two, including DCS and Jones. Due to his failure to timely file a response to the defendants motions for judgment on the pleadings, the district court granted the motions and dismissed Sanders case in a Friday decision.

In Iredell Sanders v. Indiana Department of Child Services, April Monique Jones, 3:20-CV-674,the defendants argued multiple claims, including that Sanders claims were barred by res judicata. In ruling for the defendants, the district court found that all three elements of res judicata were met as to both parties.

The district court found that there was a final judgment on the merits in an earlier action and that the dispute in the instant suit arose from the same transaction as that previous suit and was nearly identical to its factual allegations. Itfound the same litigants were involved because DCS was a party in the previous litigation and Jones is in privity with DCS.

Finally, the court also concluded because Sanders explicitly referenced Jones title, alleged actions of Jones which involve her doing her job as a caseworker, and sought injunctive relief as a remedy, that Jones was being sued in her official capacity alone.

Because all three elements of res judicata have been met as to both parties, the Court finds that Mr. Sanders claims against both DCS and Ms. Jones cannot be relitigated, Chief Judge Jon DeGuilio wrote.

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DCS wins judgment following allegations of caseworker taking unpermitted photos - Indiana Lawyer

Often considered a fast-track to resolution of a dispute over patent ownership, Chinas administrative adjudication mechanism has proved to be an efficient and efficacious way to resolve patent infringement issues. Chengda Li explains how it works and why more and more patentees are using it.

With the newly amended China Patent Law that became effective on June 1, 2021, the objective is to, more effectively, protect the legitimate rights and interest of patentees.

In China, there is a so-called dual-track scheme to enforce a patent, namely the administrative route and the judicial route. In case of a patent infringement dispute, the patentee or interested party may file a lawsuit in the Peoples Court or request a local intellectual property (IP) administrative office handle the dispute under Article 65 of the Patent Law. As stipulated in Article 70.1 of the Patent Law, for a patent infringement dispute that has a major impact nationwide, the patentee or the interested party can even directly request the China National Intellectual Property Administration (CNIPA) handle it. The dual-track scheme is also applicable to patent linkage disputes in China. To proceed with a drug patent dispute case arising from patent linkage, there are two routes to go. The first one is to take civil action before the courts and the second one is to file an administrative adjudication request before CNIPA.

The administrative adjudicative route

The basic legislation for using the administrative adjudication mechanism for patent dispute resolution, in addition to the Patent Law, is the Measures for Patent Administrative Enforcement, which were originally enacted in 2001 and were later amended in 2010 and again in 2015. The Measures prescribe fundamental rules of administrative adjudication for patent infringement disputes and patent administrative enforcement. The Measures also set out the primary procedures and standards for handling administrative adjudication cases. Now the Measures are still in effect.

According to the Measures, the local IP administrative offices of each province, as well as the CNIPA (which was previously known as the State Intellectual Property Office, or SIPO) are responsible for both administrative adjudication for patent infringement disputes and patent administrative enforcement. It is to be noted that in the newly amended Patent Law, Article 69 differentiates between patent administrative enforcement authorities and administrative adjudication authorities. The former refers to Administrative Offices for Market Regulation, while the latter to the CNIPA and local IP administrative offices of each province. Pursuant to new Article 69, patent administrative enforcement authorities are granted stronger administrative powers than administrative adjudication authorities. Specifically, an administrative adjudication authority may conduct questioning of the involved parties and examination of sites and products relating to the infringement in a patent infringement dispute, whereas a patent administrative enforcement authority may additionally seize or detain counterfeit products and conduct evidence examination and reproduction. It can be expected that the Measures will be amended in the near future to be in line with the newly amended Patent Law.

To further strengthen the protection of patent rights and improve the efficiency and quality of administrative adjudication concerning patent infringement disputes, the CNIPA issued a more detailed Guideline on December 26, 2019, called the Guidelines for Handling Cases of Administrative Adjudication Concerning Patent Infringement Disputes (hereinafter referred to as the Guidelines). The Guidelines clarify the basic concepts of administrative adjudication on patent infringement disputes, including jurisdiction, avoidance, agency, delivery, case handling procedures such as case docketing, examination, evidence investigation, and rules of evidence. The Guidelines also explain the infringement determination of various types of patents and the relevant principles of infringement determination.

On May 28, 2021, to better handle administrative adjudication cases of patent infringement disputes that have a significant nationwide impact, CNIPA released the Administrative Adjudication Measures for Major Patent Infringement Disputes. The Measures went into force June 1, 2021, along with the amended Patent Law. The Measures provide an explanation of the categories of cases that would fall under the purview of Article 70.1 of the Patent Law. Per Article 3 of the Measures, any of the following situations is a major patent infringement dispute:

(1) Involving major public interests;

(2) Significantly affecting the development of the industry;

(3) Major cases involving cross-provincial administrative regions;

(4) Other patent infringement disputes that may cause significant influence.

The Measures set out detailed guidelines for the administrative handling of such cases by CNIPA, including the procedures of oral hearing and the technical investigator system, which is similar to procedures in a civil litigation before a court. The Measures also clarify that the only remedy available is an injunction, with no damages. Appeals of a decision of CNIPA can be filed before the Beijing Intellectual Property Court within 15 days of the ruling but enforcement of an injunction will not be suspended during the appeal process. Of note, the Measures prescribe that, during the administrative adjudication, if the involved patent is declared invalid by the Reexamination and Invalidation Examination Division of the CNIPA, the administrative adjudication case may be terminated. Where there is evidence to prove that the decision to invalidate the patent has been revoked by an effective administrative judgment, the patentee may file another administrative adjudication request. Considering that the administrative authority handling administrative adjudication cases of patent infringement disputes and the Reexamination and Invalidation Examination Division are both sub-departments of CNIPA, it is seen that, in the future, patent infringement disputes may be settled in a more convenient and cost-effective manner through the administrative adjudication route. Moreover, joint trial of administrative adjudication and patent invalidation procedures may be possible within CNIPA.

Technical investigators

Turning to the technical investigator system, it is believed that the introduction of the technical investigator into patent infringement cases is beneficial and helpful, since most patent infringement dispute cases are difficult and complex with professional and technical challenges. On May 7, 2021, CNIPA issued the Provisions on the Participation of Technical Investigators in Administrative Adjudication of Patent and Integrated Circuit Layout Design Infringement Disputes (Interim) (hereinafter referred to as the Provisions). Issuance of the provisions follows the Supreme Peoples Courts regulation on technical investigators for IP-related litigations. The provisions stipulate in detail the roles and responsibilities of technical investigators. According to the Provisions, both the CNIPA and the local IP administrative offices may assign technical investigators to participate in administrative adjudication cases of patent infringement disputes. The CNIPA is responsible for building a national technical investigator database and selecting and managing the technical investigators. The local IP administrative offices may select and manage the technical investigators in their own jurisdictions but may also apply for the deployment of technical investigators from the national technical investigator database to participate in its administrative adjudication activities. The provisions set out that the technical investigators may participate in the oral hearings and ask questions to the parties and other relevant personnel. The technical investigators may also attend meetings of the collegiate panel as nonvoting delegates. Recently, the CNIPA announced that a first panel of 35 technical investigators has been elected, covering technical fields such as machinery, electricity, communications, medical biology, chemistry, optoelectronics, materials, and design.

Most recently, on July 5, 2021, the CNIPA released the Administrative Adjudication Measures for Early Resolution Mechanisms for Drug Patent Disputes. Together with the above-mentioned administrative adjudication measures for patent infringement dispute, China has established its characteristic and comprehensive administrative adjudication system. The Measures clarify the basic concepts of administrative adjudication for early resolution mechanisms for drug patent disputes (the so called patent linkage system), including jurisdiction, parties, case handling procedures such as case docketing, examination, mediation, and oral hearing. The Measures also explain the relation with patent invalidation and the parallel proceedings with civil litigation.

Specifically, per Article 4 of the Measures, no successful prior lodging of a civil action before a court is one of the preconditions for filing a request for administrative adjudication with CNIPA. However, successful filing of administrative adjudication case with CNIPA can neither preclude from filing nor stay the civil action according to the rules of the Supreme Peoples Court. With respect to invalidation, the Measures clarify that all the claims in suit of the patent being invalidated, either before or during the administrative adjudication, can be a ground for dismissal of the administrative adjudication; in case of a part of the claims in suit of the patent being invalidated, the administrative adjudication will be based on those claims that are maintained valid. But it is not clear where the CNIPAs invalidation decision is appealed to the court, whether status of the claims here would be determined by the CNIPAs invalidation decision, or would rely on the final judgment from the appeal.

Is administrative adjudication a fast-track?

Generally speaking, the administrative adjudication route is much faster and less expensive than civil litigation. When handling patent infringement disputes, the local IP administrative office is required to complete the adjudication within three months from the date of case docketing. If the case is particularly complicated and the time limit needs to be extended, it shall be approved by the person in charge of the local IP administrative office. The approved extension shall not exceed one month at most. It can thus be seen that the administrative adjudication route is a fast-track mechanism for patent infringement dispute resolution. More and more patentees, especially small and microenterprises, choose this route in case of an infringement dispute. According to a statistic of CNIPA, in June 2021, there were as many as 4,257 administrative adjudication patent infringement dispute cases filed before local IP administrative offices in China, among which the IP Administrative Office of Zhejiang Province handled the most, up to 2,450 cases. It appears that the administrative adjudication route is becoming a preferred way to resolve patent infringement disputes, especially for those infringers that are located in a developed province.

A most famous administrative adjudication case in China may be Shenzhen Baili Marketing Service Co. Ltd. v. Apple Inc. (the Baili case). In May 2016, the Beijing IP Office issued a decision affirming that Apples iPhone 6 and iPhone 6 Plus infringed a Chinese design patent ZL201430009113.9, owned by Shenzhen Baili Marketing Service Co. Ltd. The Beijing IP Office thus rendered a ban, ordering Apple to stop selling the iPhones. Upon the issuance of this decision, the decision itself, together with Beijing IP office, came under the spotlight. Apple immediately brought forth an administrative lawsuit before the Beijing Intellectual Property Court to challenge the administrative decision. On March 24, 2017, Beijing Intellectual Property Court rendered its first-instance judgment overruling the administrative order by the Beijing IP Office. In the meanwhile, Beijing Intellectual Property Court also ruled directly over the civil dispute between Bali and Apple and reached a non-infringement judgment in favor of Apple.

Conclusion

Administrative adjudication has proved to be an efficient and efficacious mechanism for patent infringement dispute resolution in China. However, some experts have been questioning whether the bifurcated approach, the administrative adjudication and civil litigation dual-track scheme in China, will cause confusion and inconsistent judgments.

In the fourth amendment to Chinas Patent Law, the dual-track scheme has been kept and even extended to disputes involving open licenses and patent linkage disputes. The administrative adjudication mechanism should be encouraged if the primary purpose is to stop patent infringement earlier without focusing on potential damages. If, however, one of the purposes is to obtain payment of damages, it is advisable to go with the court proceedings to settle patent infringement disputes.

Last but not least, for a patent dispute that has a significant impact, it may be advisable to file both a civil action and an administrative adjudication request. But it should be remembered that the administrative adjudication request must be filed simultaneously with or before the civil action; otherwise, the administrative adjudication request will be rejected.

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The fast-track to patent dispute resolution: The administrative adjudication mechanism - Lexology