Which Chinese authority has the jurisdiction over the patent infringement?
Recently, the International Trade Commission of United State ruled on the patent conflict between Apple and HTC, determining that HTC has infringed the No.647 patent of Apple iPhone and banning the import of HTC’s smart phone with this patent feature from 19th, April, 2012.
For the case, Bridge IP Law Commentary would like to discuss a problem that which authority shall have the jurisdiction over the conflict shall it occurred in China? In fact, there’s no similar administration like ITC in China considering the IPR conflict with foreign products involved, and the administration duty on the infringement combat mainly focuses on the fake patent, namely those products claimed being patented or claiming owning others patent. Although the administration will handle some patent conflicts of unlicensed using, the complicated dispute, like the one between Apple and HTC, is mainly handled by the court.
By China Patent Law, Apple shall file the lawsuit to the court with the jurisdiction shall it felt being infringed (for related information on our website, please CLICK HERE). And the court may sentence the infringement stop and compensation on determination of the infringement.
The specific regulation in the Patent Law is that
After the patent right is granted for an invention or a utility model, unless otherwise provided for in this Law, no unit or individual may exploit the patent without permission of the patentee, i.e., it or he may not, for production or business purposes, manufacture, use, offer to sell, sell, or import the patented products, use the patented method, or use, offer to sell, sell or import the products that are developed directly through the use of the patented method.
After a design patent right is granted, no unit or individual may exploit the patent without permission of the patentee, i.e., it or he may not, for production or business purposes, manufacture, offer to sell, sell or import the design patent products.
Surely, the legal exception like for scientific purpose and temporary passing the territory shall not be included on the above prohibition.
By our experience, the regular way to combat the competitor by patent shall include:
1. The preliminary injunction of patent. You may CLICK HERE for more related information on our website.
2. Custom protection. For Apple, it may record its patent in China custom, and thereby, the custom will notice the patent owner on inspection of the infringement against the recorded patent. The patentee may apply to the custom for the detainment within 3 working days after the notice. And the custom shall detain the suspicious infringing products on the application and the guarantee provided by the applicant. After that, the custom shall evaluate the claimed infringement within 30 days, and once the infringement is determined, the custom has the right to confiscate the product regardless whether the shipper or the consignee shall take the civil liability hereby. When the infringement could not be decided, the custom shall notice the patentee in order that they may apply for the detainment to the judicial organ.
Related posts on our website:
1. Increased Penalty for the IPR Protection after China Criminal Law Revision
2. Common Problems Concerning the Notarization of Internet Evidences in China
3. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
4. Matters for Attention in the Patent Preliminary Injunction Application in China(II)
5. The Patent Prosecution Highway is Piloting in China
6. Brief Introduction on the Assessment Report of Utility Models Patent in China
7. The First Primary People’s Court with Jurisdiction over Patent Disputes in China
8. The Suggestion on the Patent Management of the Company in China from the former Huawei Patent Engineer
9. The Patent Application of 2-Dimensional Bar Code in China
10. China Begins to Try Out Intellectual Property Pledge System
Author: Mr. Gao Shaoyi
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.