Tag Archives: shanghai no.1 intermediate people’s court

First China Trade Secret Litigation Injunction Ends in Favor of Eli Lily and Company

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(By You Yunting) We have introduced that Shanghai court issued the first trade secret litigation injunction in China pursuant to the new Civil Procedure Law. Recent, Shanghai No. 1 Intermediate People’s Court made a judgment in favor of U.S. drug maker Eli Lily and Company and Eli Lily (China), determining that the defendant must cease infringing the trade secret of the plaintiff. In today’s post, we will introduce the abstract the judgment following with our comments.

Introduction to the Case:

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NOVARTIS Awarded Injunctive Relief in Trade Secret Action in China

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(By You Yunting) According to reports, in February 2014, Shanghai No.1 Intermediate People’s Court approved plaintiff NOVARTIS’s application requesting the court to order an injunction ruling so as to protect its legal rights and interests in a trade secret litigation.

According to reports, NOVARTIS claimed that the defendant should not disclosure, use or allow another party to use the 879 documents on its trade secret lists that shall keep secret.

For intellectual property infringement, China’s supreme People’s Court may also set a temporary injunction on judicial interpretations of the Patent Law, Trademark Law and Copyright Law; we have previously provided posts discussing related systems in other areas of intellectual property law, such as patent preliminary injunction, copyright injunction and litigation injunction. With regard to trade secrets, however, no particular injunction is set on judicial interpretations of the Anti Fair Competition Law.

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Why Shanghai Court Enforces Trademark’s Diligence Obligation on Original Equipment Manufacture?

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(By You Yunting) Original Equipment Manufacture (the“OEM”) refers to a commercial model where the Principal person is responsible for the brand, research and design, and marketing, meanwhile, the manufacturer is responsible for production. As a big manufacturing country, OEM is an important way for our manufactured products to participate in international competition. Under China’s Laws, however, it is unclear whether OEM constitutes as a trademark infringement, and local courts have handed out different decisions for this problem. According to the author’s information, Fujian higher court, Zhejiang higher court and Shanghai higher court held that OEM manufacturers does not involve trademark infringement, but Guangdong higher court decided that the OEM manufacturers shall take responsibility for trademark infringement in many cases. The Supreme Court has not yet expressed its opinion towards this problem.

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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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Who Has the Burden of Proving “Profit After Tax” When Calculating Remuneration for a Patented Invention?

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(By Albert Chen) In the previous post, the author introduced how to determine the unit granted the patent right by looking at a case decided by a Shanghai court. Today, the author will use a case from a Guangdong court to introduce how the court there held on who must prove “the profit after tax” when a dispute breaks out on invention remuneration payable by the unit granted the patent right.

Summary of the case:

The employee inventor, Mr. Zhu, worked for Dongguan Wei Ba Cleaning Equipment Co., Ltd (the “Wei Ba Company”) from 1998 to 2006. During his employment, Mr. Zhu participated in the development of sixteen patents and was also registered as a joint inventor in the company’s patent applications. Afterwards, the Wei Ba Company exercised some of the patents but did not pay Mr. Zhu any remuneration. For this reason, Mr. Zhu filed a lawsuit against the Wei Ba Company, claiming that remuneration payable for his invention should be calculated based on the 2004 Annual Joint Inspection Report that the Wei Ba Company submitted to the Ministry of Commerce, which indicated the company’s total profit after tax. Moreover, Mr. Zhu claimed that the remuneration shall be calculated for the past two years.

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Shall Parent Company Make the Payment for Subsidiary Employees’ Invention for Hire?

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(By Albert Chen) In past essays, the author has introduced the legal issues related to the establishment of remuneration for inventions developed under work for hire schemes, and payment of said remuneration. Through a study of two recent cases, the author has found that the comments made by the judge in them is of reference value when deciding the “unit granted the patent right” and the “one liable to prove after tax profits”. In the meantime, the author would like to share his interpretation and analysis in these two posts.

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