Earlier this month, China published a memorandum of cooperation for joint efforts to strengthen punishment for dishonesty in patent arena, signed by a total of 38 government bodies including the supreme court, central bank, ministry of finance, patent office etc. According to this memorandum, dozens of punishment measures will soon be targeted at “severely dishonest behavior” such as repeated patent infringements, refusal to comply with administrative decisions, obstruction of local IP offices in conducting investigations and collecting evidence etc.Continue reading “China announced sweeping punishment measures for dishonesty in patent arena”
In competition law, vertical resale price maintenance (“RPM”) agreements between upstream and downstream firms are generally seen as not so severely harmful to competition as horizontal price-fixing agreements among direct competitors. Therefore, whether and to what extent RPM should be prohibited is a question having been answered differently in different jurisdictions. A peculiar situation exists in China, where even in the same country the standard for assessing legality of RPM diverges between administrative and judicial enforcement. While, in administrative enforcement, the responsible enforcement body, the National Development and Reform Committee (“NDRC”) considers RPM illegal “per se”, the Chinese courts have established a more moderate approach based on the “rule of reason” to assess the legality of such agreements. The latter approach is well exemplified in the Gree case, for which the Guangdong Higher People’s Court has issued a second instance decision earlier this month. Continue reading “Is resale price maintenance illegal in China? The Gree case”
A Chinese judicial statistics service platform, IPHOUSE has recently published a statistical analysis report on the status and trend of patent litigations in China from 2013 to 2017. Some interesting information is gathered below for an overview. Please note that the term “patent” in the report, if not further specified, is used to encompass several patent-related rights, namely invention patent, utility model patent and design patent. Continue reading “Latest status and trend of patent litigations in China”
During a recent annual meeting, China’s highest legislature, the National People’s Congress approved a sweeping government restructuring plan. As part of the plan, the State Intellectual Property Office (SIPO), which so far acts as a patent office only, will additionally incorporate the functions of managing trademarks and geographical indications of origin (GIs), which are currently administrated by separate administrative organs. Therefore, in the future, all applications for patents, trademarks and geographical indications of origin in China will be filed at the SIPO, and the SIPO will be responsible for examining and subsequently registering these IP rights. Further, based on China’s existing dual administrative and judicial system for enforcing IP rights, the SIPO will also be in charge of administrative adjudication of disputes involving patents, trademarks and GIs, and supervising their administrative enforcement. Continue reading “China to restructure the State Intellectual Property Office”
China’s first lawsuit for infringement of graphical user interface (GUI) design has been recently concluded by the Beijing IP Court. This case has attracted much public attention, as GUI designs have become protectable in China by so-called design patents only as of 1 May 2014, and despite a large number of GUI design patents being granted since then, their enforceability remained untested until the present case. The judgment issued on 25 December 2017 now results in heated discussion and leaves, in particular, software developers counting on strong GUI design protection very disappointed. Continue reading “Beijing IP Court delivers the first judgment on GUI design infringement in China”
Never has information on the internet been as interconnected as it is today. Thanks to the so-called web scraping technology, in which computer programs are used to extract information from different websites, online platforms are able to incorporate related information from different sources into a single webpage so that users can find and utilize desired information in a convenient way. However, the legality to use information collected by others deserves cautious examination, and unfair competition law is one of the aspects to be considered.
In September, the Shanghai Intellectual Property Court issued a second-instance judgment in Hantao v. Baidu case, laying out useful guidelines for assessing whether unauthorized use of information collected by others constitutes an act of unfair competition. Continue reading “Excessive use of online information collected on third parties’ websites amounts to unfair competition – rules the Shanghai IP Court in the Hantao v. Baidu case in China”
On 18 August, China has officially launched its first “Internet Court” in Hangzhou, which city is known as the Chinese e-commerce capital, and is home to Internet giants such as Alibaba and NetEase. The name “Internet Court” has a two-fold meaning: First, this court specializes in resolving Internet-related cases including disputes regarding contacts of online shopping, services and microfinance loans, Internet copyright disputes and domain name disputes etc. Second, all court proceedings in this court can be conducted via an Internet platform. Located in a normal court building in Hangzhou shared with another local court, the Internet Court is nevertheless ready to accept cases filed electronically from all over the country, to hold online mediations, to examine electronically submitted evidence, to hold oral hearings with litigants via video conference, to deliver judgements and to accept applications for enforcement orders, all via Internet. Continue reading “China’s first Internet Court”
Earlier this year, the Beijing IP Court issued a landmark decision in the Iwncomm v. Sony case, which clarified a number of interesting issues relating to standard essential patents (SEP). The court ruled that Sony had infringed an SEP held by the Chinese company Iwncomm and granted, besides damages for past infringement, the first injunction based on an SEP in China. In the same decision, the court addressed another important question concerning the applicability of the exhaustion doctrine. Under the doctrine, once an authorized sale of a patented product or a product obtained by using a patented manufacturing method occurs, the patent holder’s exclusive rights to control the use and sale of that product are said to be “exhausted,” and the purchaser is free to use or resell that product without further restraint from the relevant product patent or method-of-manufacture patent. It was nevertheless unclear from the existing case law, whether the exhaustion doctrine shall also be applied to a method patent that protects a method of using an existing product(s) (method-of-use patent), until the Sony decision now answered this question clearly in negative. This decision may thus provide an important guidance for future cases. However, when compared with more balanced approaches in other jurisdictions, which I will briefly discuss in this post, this guidance does not appear unquestionable. Continue reading “No exhaustion doctrine for “method-of-use” patents – Iwncomm v. Sony decision in China”
At least if the current plan holds, the Unified Patent Court will quite soon be up and running. Businesses express concerns on possible misuse of the UPC’s powerful measures for patent enforcement such as pan-European injunctions and Saisie, i.e., an order to compulsorily preserve evidence on alleged infringers’ premises. Along with these measures, however, the UPC will also provide tools aimed exactly at preventing the misuse of such orders. A so called “protective letter” will be one of the tools to that end. This tool may be unfamiliar to many readers from outside Germany, since it is mainly a German peculiarity and although available in several other European jurisdictions, such as Switzerland, the Netherlands and Belgium, it has limited practical importance there. Now, being introduced by the UPC agreement, the protective letter is expected to gain its influence throughout Europe. This post briefly introduces what a protective letter is, and discusses some special features of a UPC protective letter and some considerations for preparing protective letters. Continue reading “Protective letters in the UPC”
Last October, the State Intellectual Property Office of China (SIPO) released draft revisions to its Guidelines for Patent Examination for public consultation (see my earlier post). This month, SIPO published the final text of the revised Guidelines, which will enter into force on 1 April 2017. In comparison to the draft, the final version remains substantially unchanged. This may be a sign of support from the stakeholders. In fact, the proposed revisions received a quite good press immediately after their release, even when it comes to the part of revisions regarding patents on business models, which have been and probably are still one of the most controversial aspects of the IP system in many other countries such as the U.S.
As the SIPO explicitly stated, the planned revisions are aimed to strengthen the IP protection for innovation in emerging fields such as Internet, e-commerce, big data and to improve the IP protection system for business models. This emphasis reflects the state of innovation in China, where indigenous businesses have been so far quite successful in developing innovative services and products in these emerging fields. While it can be debated whether an expansion of patent protection into the arena of business models would indeed do more good than harm to the innovation, the objective of the Chinese policymakers is clear: to promote business model innovation through more IP protection.
While it remains to be seen in long term whether the above policy objective can be achieved, it is for individual inventors and businesses more interesting what immediate changes in practice will come out of the planned revisions. So, let’s first take a look at the revision itself. Continue reading “Revised Patent Examination Guidelines in China welcome more patents on business models”