(By You Yunting) I was once asked by a journalist what the foundation of intellectual property courts and the ratification of the Opinions on Quicker Development of the Globally Influential Scientific and Technological Innovation Center matter to small and medium-sized startups, and replied the outcome of those two events were the same, both of which ultimately aimed to enhance the awareness of intellectual property throughout our society and guide small and medium-sized enterprises to establish a competition barrier and a management philosopher on how to avoid infringing others’ intellectual property rights. As governmental authorities define and set official instructions and policies, each startup should take full use of its intellectual property during daily operation, trying to become positioned to succeed, just like a well-known Chinese aphorism says that even the pig can fly when the typhoon comes. Combined with my experiences, this article mainly deals with the issue of how small and medium-sized startups seek intellectual property protection both internally and externally.
(By You Yunting) In our previous post, we introduced that Graphical user interface (the “GUI”) for software has not been protected in China. However, State Intellectual Property Office (the “SIPO”) suggested protecting the GUI in the latest Draft Revision of the Patent Examination Guidelines (the “Draft Revision”) on October 22, 2013. Recently, in the publication of the Decision of SIPO on Amending the Patent Examination Guidelines, It is the GUI that is protected by the Patent Law as of May 1, 2014.
(By You Yunting) We have already introduced today’s topic in our previous post how to record patents with China Customs. For more background information, please read this article first. Recently the Chinese General Administration of Customs has updated its previous recordation system for intellectual property rights enforcement and began to utilize this latest recording system from March 1, 2014. This updated recording system puts forward a new requirement that upon patent recordation, the right holder of a patent that has been recorded by Customs must present valid documents of the relevant patent rights before the given deadline, otherwise the patent recordation will be canceled.
(By You Yunting) In the epic battle of Apple Inc. v. Samsung Electronics Co. starting from 2011, Apple filed its lawsuit against Samsung in the United States, alleged that Samsung infringed several graphical user interface (the “GUI”). If Apple filed its lawsuit against Samsung in China, however, its complaint regarding infringing several GUI may not be filed because at present China has not accepted applications of patent for GUI. Nevertheless, good news comes that China’s governments are changing their attitude on the application for GUI.
Other local laws and regulations cannot be used in legal judgments. Furthermore, enterprises shall award to the employee proper remuneration regardless of profitability.
(By Luo Yanjie) Patent carries huge value to enterprises; key patents can be especially valuable, because they are often only gained after a great deal of expense. Because of this, according to relevant provisions in the Patent Law, the right to apply for a patent belongs to an entity for any invention-creation, either made by a person in the course of executing tasks of the entity he belongs to, or made by him by primarily utilizing material and technical means belonging to the entity. Inventors having rights over inventions is well accepted, but a difficult position for the inventor to be in; often, we find the laws to be inadequate to properly serve and protect the interests of the inventor-creator. In today’s post, we will introduce to you a case touching upon this legal issue.
(By Albert Chen) Recently, the Shanghai Higher People’s Court (the “Higher Court”) issued the Guidelines on the Trial of Employment Remuneration and Reward for the Inventor and Designer (the “Guidelines”), which has further provided the issues involving the standard of the remuneration and reward as well as their payment. In today’s post, the author would like to interpret the new regulations in the Guidelines.
I. The standard of the service invention remuneration
According to the Guidelines, the remuneration for the service invention shall not be less than RMB 3,000 and not less than RMB 1,000 for design patent and utility model.
(by George Wu) About two weeks ago on April 15, 2013, the Supreme Court of the United States heard oral arguments concerning the matter of patenting of genes. Myriad Genetics and the University of Utah are the owners of several patents related to the isolated human BRCA1 and BRCA2 genes. Particular sequences of the BRCA1 and BRCA2 genes predispose women to early-onset of breast cancer and ovarian cancer. The American Civil Liberty Union (ACLU) and several other parties are challenging the validity of these patents.
Visit to St. Louis in the US, Part II
(By You Yunting) At the end of this past March, at the invitation of the US government, the author visited America with other Chinese legal experts with the goal of better understanding its IPR system. The third city in the visit was St. Louis, located in the middle of the United States. On March 26 2013, the day where the most-watched lawsuit in the bio-science industry, the lawsuit between Monsanto and DuPont, entered into a mediation agreement, and coincidently, the second day after that, namely on March 28, the author visited Monsanto’s legal department in St. Louis to better understand the facts involved in the case. The day after that, the author went to the Federal Court in the Eastern District, in St. Louis, Missouri, and exchanged opinions regarding the case with the judge hearing it. Considering the influence coming from that lawsuit would not be less than that produced by the lawsuit between Samsung and Apple in the tech industry, the author would like to introduce to the readers some of the facts presented to us by the judge. Also, we would like to remind our readers that the title of this essay covers only part of the content of this post; that being said, it shall not be taken as suited for a professional study.
(By Albert Chen) Past essays on this websites have introduced the design patent dispute between Honda Motor Co., Ltd. (“Hongda”), Hebei Xin Kai Auto Manufacturing Co., Ltd. (“Hebei Xin Kai”) and Shuanghuan Auto Co., Ltd. In another utility model patent dispute involving Hongda and Xin Kai, the Supreme People’s Court has rendered a decision on jurisdiction in design patent disputes. This dispute deserves attention and concentration and will be introduced in today’s post.
Record of the Visit to St. Louis, Part I
(By You Yunting) In late March, the author had the opportunity to take a journey to the United States at the invitation of the US government in order to better understand how the US IPR system operates. The third he visited was St. Louis in the midwest, and while he was there there he visited the well-known bio-tech company, Monsanto Company (NYSE: MON, the “Monsanto”), and was received by senior legal officers. The following is the brief record of the visit there. The author notes that the title of this essay only covers part of the content of the essay and should not be adopted as theory.
Day Five of the US Visit II
In late March, the author had the opportunity to make a journey to the United States at the invitation of the U.S. government in order to better understand how the US intellectual system operates. On the fifth day of the visit, the author went to the Federal Trade Commission (the “FTC”), and the following is a brief record of his visit there.
The FTC is the administration in charge of investigating and taking action against unfair competition and anti trust in the US. During the visit, FTC officials showed us a map showing that as of 1900, only the US and Canada had enacted competition laws, including unfair competition law and the anti trust law. Later by 1960, Sweden, France, and Japan passed legislation on competition. By 1980, many countries in Europe and South America passed competition laws, as well as Australia, India, Thailand, and South Africa. By 2012, almost all states of the world had laws in that field, except for a few African countries.
Day three of the visit to the United States
(By You Yunting) Beginning at the end of this March, on the invitation of the US government, I visited America with the goal of understanding its IPR system. On my third day in the US, I visited the Pharmaceutical Research and Manufacturers of America (“PhRMA”), the United States-China Business Council (“USCBC”), the United States Patent and Trademark Office (“USPTO”), and the East Asia Bureau of the US Department of State. The following is the brief record of my meetings on that day.
(By You Yunting) This March, at the invitation of the U.S. government, Mr. You Yunting, the founder of Bridge IP Commentary began his journey to the United States. The main purpose of this visit was to better understand the system of intellectual property rights in the United States. Mr. You would like to share with our readers his experiences there in several posts here on our website. Of course, the content of the posts may not be truly comprehensive or strictly accurate; that being said, if you find any mistakes or comments that can be corrected or improved upon, please let us know. We encourage more dialogue with the IPR community and welcome all constructive commentary. The following is the first post in a series of Mr. You’s visit to the United States:
You may click here for the simplified version of this post, if you feel the current one is too long to read.
On June 30, 2003, the Plaintiff FIAT AUTO S.P.A (“FIAT”) applied for a design patent named “automobile” with the State Intellectual Property Organization (the “SIPO”). That application was approved on May 19, 2004 with patent number ZL03353217.6 (the “Patent”).
In November 2006 and April 2007, Great Wall Motor Company Limited (GWM) exhibited its vehicle, the “GreatWall Jingling” in the Beijing Auto Show and Shanghai Auto Show. FIAT alleged that the vehicle exhibited by GWM infringed upon its patented design, and subsequently filed a lawsuit in the Shijiazhuang Intermediate People’s Court, demanding an apology and compensation.
—Interpretations on Solutions to Several Issues in Hearing E-Commerce IPR Infringement Cases
In today’s post we will continue to discuss the standards to be considered in determining the liability of e-merchant platforms.
III. Standards in Determining the Indirect Infringement Liability of E-Merchant Platforms
As discussed above, an e-merchant platform may only assume indirect infringement liability under the law, and therefore it would not be necessarily always be liable for infringement occurring on its platform. The pressing question then, is what standards shall be utilized when determining their liability? In response to this question, we would like to share our analysis based on a comparison of similar statutes: