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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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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Trade Secret Litigation Injunction Rulings in China

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(By You Yunting) According to media reports (note: the link is in Chinese), Eli Lilly and Company and Eli Lilly (China) sued an employee named Huang in the Shanghai No.1 Intermediate People’s Court. That court recently issued the first trade secret litigation injunction in China’s history, and ruled a litigation preservation that prohibited Huang from disclosing, using, or allowing any third party to use 21 documents that were protected as trade secrets by the plaintiff.

Inductions to the Case:

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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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Has Apple Protected Its APP through the BSA?

The Second Record of the Day Four of the US Visit

(By You Yunting) 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 U.S. IPR system operates. On the morning of the fourth day of the journey, the writer visited the Business Software Association (BSA), which originally was not on the list of places to visit; it was later added on the recommendation of the writer. Despite this, the BSA received us with a chief inspection officer. The following is a record of our discussion carried out on that day. The topic of this post only concerns part of the discussion, and the reader may skip to the last part of this article if it interests you.

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How Do Chinese Courts Distinguish “Manufacture” and “Sale” When Hearing Design Patent Infringement Cases?

360截图-27970776

(By Luo Yanjie) Generally, the manufacture and sale of patented products are easily distinguished. Sale normally refers to infringing sale and purchase of patented products with no engagement in assembly or manufacture. In the case introduced in this essay, however, whether the behavior of the defendant was “manufacture” or “sale” is the key point argued. Now we would like to use the case and relevant law to introduce the difference between design patent “manufacture” and “sale.”

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How Chinese Courts Determine Remuneration for Employee Inventions?

(By Albert Chen) Yesterday’s post introduced regulations concerning calculation and payment of remuneration for the invention made for hire. The post also pointed out problems in the existing law, both at the by the central government and local level, namely that they lack binding authority, have low enforcement, or provide inadequate regulation on the liability of the unit.

The author has conducted research on these points in the established cases in China and found a case decided last year by the Guangdong High People’s Court (“Guangdong Court”), which is of referential value to settling the above problems.

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How Should Chinese Businesses Pay Remuneration for Inventions Created by Their Employees?

(By Albert Chen) Statistics have shown that since 2007, the invention made for hire have comprised over half of China’s patent applications, and the number is still increasing. According to Article 16 of the Patent Law: “The unit that is granted the patent right shall reward the inventor or designer of an employee invention. After such patent is utilized, the inventor or designer shall be given a reasonable amount of remuneration according to the scope of application and the economic results.”

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Latest Patent Law Revision Exposure Draft from SIPO

The State Intellectual Property Office (SIPO) published the exposure draft of the amendment to patent law on 9th August 2012. In this draft, we could find only some clauses are revised, and the followings are the articles translated by us for your reference.

The existing articles

The articles in the exposure draft

Article 46 The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision. The decision on declaring a patent right invalid shall be registered and announced by the patent administration department under the State Council.

A person that is dissatisfied with the patent review board’s decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people’s court, within three months from the date of receipt of the notification. The people’s court shall notify the opposite party in the invalidation procedure to participate in the litigation as a third party.Article 46 The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision.

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The Latest Laws and Regulations of July, II

V. The Ministry of Finance Issued the Provisions on Handling Accounting of the Pilot Enterprise Levied VAT instead of Business Tax ( the” Provisions”)

On 17th of July, 2012, the Ministry of Finance issued the Provisions to coordinate the implementation of the pilot work of changing levy of Business Tax to VAT.

(From the website of the Ministry of Finance)

VI. The second Draft of Revised Copyright Law has been Issued for Public Opinions

On 6th of July, 2012, the National Copyright Administration issued a notice on the second draft of revised Copyright Law of People’s Republic of China for public opinions (the “Notice”). According to the Notice, since the issuance amendment draft of Copyright Law on 31st of March, 2012, lots of opinions and advices have been proposed by the public, based on which the National Copyright Administration revised and promoted the amendment draft. Additionally, a brief description was issued together with the amendment draft, according such brief description, the revised contents covers the content of copyright, the right of audio-visual performers, performer and recording producer’s right to receive remuneration based on the broadcast of recording production and performance, statutory license, fair use and other aspects. The deadline for the second draft for public opinions is 31st of July, 2012.

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Beijing Files Most IPR Lawsuits in China

As reported by Mr. Chi Qiang, the chief justice of Beijing Higher People’s Court,on the 5th Session of the 13th People’s Congress of Beijing, there have judged 12, 269 IPR cases in Beijing courts of each level, which is a year by year increase of 16.3% and occupies 22.3% of all around China. For these cases, both total amount and new type case are rank first in all the courts nationwide.

Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

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Suggestions from Chinese Writer on the Modification on Copyright Law

The modification on China Copyright Law is under preparation, and as news reports, for the promote of internet prosperity and infringement combat, Ms. Zhang Kangkang, the vice president of Chinese Writers Association and China Literary Copyright Protection Association suggested on the law modification recently:

I. To legally determine the fault ascertainment standard of Safe Harbor Rule

Ms. Zhang suggested to drafted the standard of “known or shall be known” as the legal standard of the ISP fault ascertainment, meanwhile, the obligation of ISP shall also be listed in the modified law while no too high obligation shall be set.

Bridge IP Law Commentary’s opinion: There’s no legal standard on the ascertainment of ISP fault in Copyright Law, with the standard is referred to partly in the Article 36 of Infringement liability law, “Where no measures have been taken by IPS on knowing the infringement or violation by users against others, the ISP shall take the joint liability with the infringer.”

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The First Primary People’s Court with Jurisdiction over Patent Disputes in China

—-Introduction of the Jurisdiction System of Patent Litigation in China

Highlights: Introducing the jurisdiction system of patent litigation in China, including the territory jurisdiction and jurisdiction by forum level of the patent civil and administrative litigation involving inventions, utility models and design.

Recently, the Supreme People’s Court has approved the Beijing Haidian District People’s Court (the “Haidian Court”) as a pilot to hear patent cases, thereafter the Haidian Court becomes the fist primary people’s court with jurisdiction over patent cases in China.

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