What Startups Need to Know to Protect Their IPR in China

 (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.

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Is Integrated Circuit Layout Design Protected by China Judicial Judgment?

(By You Yunting) Introduction to the case:

Appellant (plaintiff at first instance): Hi-Trend Technology (Shanghai) Co., Ltd (the “HTT”)

Appellant (defendant at first instance): Shenzhen Rui Micro-Technology Inc. (the “RMT”)

Respondent (defendant at first instance): Shanghai Yachuang Electronic Component Co., Ltd. (the “YEC”)

Court of first instance: Shanghai No.1 Intermediate People’s Court  No.: (2010)沪一中民五(知)初字第51号

Court of second instance: Shanghai Higher People’s Court  No.: (2014)沪高民三(知)终字第12号

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Introduction to Protection of New Varieties of Plants in China

(By You Yunting)Introduction to the Case:

Appellant (Defendant at first instance): Jiangsu Xunong Seeds Science and Technology Co., Ltd (the “Xunong”)

Respondent (Plaintiff at first instance): Tianjin Tianlong Seeds Science and Technology Co., Ltd (the “Tianlong”)

Court of first instance: Nanjing City Intermediate People’s Court  No.: (2009)宁民三初字第63号

Court of second instance: Jiangsu Province Higher People’s Court  No.: (2011)苏知民终字第0194号

On November 10, 2000, a new three-crossbreed hybrid japonica rice named “9优418”, jointly cultivated by the Liaoning Rice Research Institute (the “LRRI”) and the Xuzhou Academy of Agricultural Sciences (the “AAS”), was approved by the National Crop Variety Approval Committee of China (the “NAVAC”).

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Why China Court Decision Requires Software Interface Primary Aesthetics under Protection?

(By Luo Yanjie) Pursuant to the Copyright Law, the works shall be original with primary aesthetics. From this point, most software interface can’t receive protection from the Copyright law, because most software interfaces are designated in a simple arrangement for the purpose of easy-to-use and thus are likely to be considered as lack of “distinctiveness”. The judgment in the following case set forth the theory.

Introduction to the Case:

Appellant (defendant at first instance): Shenzhen Tenda Technology Co., Ltd (the “Tenda”)

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Diagnostic Method Claim in the US

(By George Wu) Another important case concerning biotechnology was decided last year at the US Supreme Court: Mayo Collaborative Servs. v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012)

Prometheus Laboratories (“Prometheus”) had obtained a patent for a method of determining the optimal dosage of the drug thiopurine, which is used to treat auto-immune disorders.  The use of thiopurine in the treatment of disease was not a new discovery, but the use of the drug had been made difficult by the fact that thiopurine is metabolized at different rate in different people.  Accordingly, the same dosage could be too low to be efficacious in one patient, while too high and toxic in another patient.  Prometheus made the discovery that by assaying for the metabolites of thiopurine, the rate of metabolism could be determined and the dosage could be adjusted according to the patient.

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China Protects the Graphic User Interface for Software as of May 1, 2014

(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.

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How Patentees Protect its Publicized Invention without Grant of Patent Rights?

(By Luo Yanjie) Abstract: After the official publication of an application for a patent of invention, the applicant may demand the entity or individual exploiting that invention to pay an appropriate fee, but is not entitled to prevent others from using the patent. After grant of patent rights by the patent office, the applicant has no right of demanding the subsequent entity or individual to pay an appropriate fee. In today’s post, our case is involved in the 2011 Min Ti Zi No. 259 Civil Judgment of the Supreme People’s Court’s

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China Attempts to Utilize Patent to Protect Graphical User Interface for Software

(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.

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Whether Patented Products’ Profit Influences the duty to Reward Inventors?

Abstract:

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.

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Shanghai Court Promulgated New Rules on Service Invention Remuneration and Reward

(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.

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Can Software User Interface be Protected by China Copyright Law?

Abstract

(By Albert Chen) User Interfaces (UI) are generally excluded from copyright protection, because a UI simply allows the software to be used by displaying various methods of operation; that being said, because UIs are all essentially limited by incorporating similar functions, similar kinds of software inevitably reach creative limits in expression of UI layouts and specification of features and functions. Looking at UIs in another way, the basic UI layout and framework essentially enter the public domain, and ergo are not afforded protection under the Copyright Law.

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Can Genes Be Patented?

(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.

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Is there Any Local Protection in the Patent & Anti Monopoly Lawsuit between Monsanto and DuPont?

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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.

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China Supreme Court: Which Courts Have Jurisdiction Over Design Patent Disputes?

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(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.

Case summary:

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How Does Monsanto Apply GMOs Patent into Company Operation?

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.

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