作者:徐静 金杜律师事务所知识产权诉讼

概述

2011年4月20日,最高人民法院发布了《知识产权案件年度报告(2010)》(“年度报告”),年度报告中,最高人民法院对2010年36个已有最终结论性意见的案件作出了43条简短评析。根据知识产权争议的性质,年度报告分成了七个主要部分:(1)专利案件;(2)著作权案件;(3)商标案件;(4)不正当竞争案件;(5)知识产权合同案件;(6)知识产权侵权责任承担;(7)知识产权诉讼证据与程序。Continue Reading 《最高人民法院知识产权案件年度报告(2010)》评析

King & Wood’s Intellectual Property Group

In recent years, the world has witnessed several milestone events signaling the arrival of a new generation of global internet companies. Apart from the much-hyped dawn of social media, there is a much broader trend taking place, one that has outgrown the traditional boundaries of the tech sector itself. “In short,” as Marc Andreessen wrote in a recent Wall Street Journal column, “software is eating the world.” As corresponding developments are happening in China, this new era has caused and will continue to cause dramatic implications on the monitoring and enforcement of intellectual property rights in the country. Continue Reading Enforcing Intellectual Property Rights in the Next Internet Era

By King & Wood’s Intellectual Property Group

China’s State Intellectual Property Office (SIPO) is able to issue compulsory patent licenses where an entity or individual who is otherwise qualified to exploit a patent does not succeed in obtaining a license on  reasonable terms and within a reasonable period from the patent holder. The new Patent Law of the PRC (the “Patent Law”) and the Implementing Rules of the Patent Law of the PRC (the “Implementing Rules”) both contain provisions regarding the compulsory licensing of patents. On October 12, 2011, the SIPO issued a circular to solicit public comments on the Amendments to the Measures on Compulsory Patent Licensing (Draft for Comments) (the “Draft Amendments”). The SIPO will be taking comments until November 13, 2011.Continue Reading SIPO Issues Amendments to Compulsory Patent Licensing Measures

金杜律师事务所知识产权

在中国,具备实施条件的单位或个人不能以合理条件或在合理期限内取得专利权人许可的情况下,国家知识产权局可以对该专利实施强制许可。中国专利法和专利法实施细则都规定了专利强制许可。国家知识产权局于20111012发布通知,就《专利实施强制许可办法修订草案(征求意见稿)》(办法草案)于1113日前向社会各界征求反馈。Continue Reading 国家知识产权局对专利实施强制许可办法修订草案征求反馈

By Richard W. Wigley of King & Wood’s Intellectual Property Group

Today in China, in conjunction with World IP Day 2011, numerous governmental agencies will actively begin a week-long promotion of the role of intellectual property in the nation’s economy, according to Han Xiucheng of the State Intellectual Property Office (“SIPO”)1. Such efforts are to be lauded, but it is well known that copyright piracy rates in China are still significantly higher (80-90+%, depending on the type of work) than those seen in developed countries, such as the United States. Copyright piracy results from a combination of factors, including not only the effectiveness of the enforcement regime, but also from consumers’ attitudes toward pirated works. There has been a shift in recent years in China away from pirated works and toward legitimate works, but this shift has been slow due to a variety of reasons. Into this dynamic, it is valuable to look at some of the most recent efforts of the P.R.C. government to reduce copyright piracy across China.Continue Reading World IP Day 2011 in China Shows Progress in Copyright Protection, though Challenges Remain

By King & Wood’s Trademark Practice

Foreign companies often have concerns regarding whether the litigation process in an overseas venue will be efficiently handled by the relevant courts. In China, given the large increase in IP-related lawsuits in recent years, this is a reasonable concern. In 2009, P.R.C. courts had concluded 6,262 cases with a yearly increase of 31.89%. 1With such an upsurge in litigation, the P.R.C. courts have faced a very significant challenge.Continue Reading P.R.C. Courts Show Improved Efficiency in Handling Foreign-related IP Lawsuits

By Susan Ning, Huang Jing and Angie Ng, King & Wood’s Competition Practice

We understand that the SAIC is currently working on draft guidelines (the guidelines) which will shed light on how Article 55 of the Anti-Monopoly Law (AML) will be enforced. It has been reported in the press that the SAIC has published a 4th draft of these guidelines and are currently consulting with the relevant stakeholders (we understand that these drafts are not publicly available). Continue Reading IP rights and Antitrust – Awaiting Guidelines (and the Tsum-Sony Case)

 By Peng Heyue,  King & Wood’s IP Department

Since the end of 2009, King & Wood has received regular requests from a number of foreign enterprises for advice on China’s ‘Indigenous Innovation’ Policy. These firms are concerned that the new policy will either force the transfer of their IP rights to China or will influence their business operations in the Chinese market by limiting their ability to compete with local domestic firms.

Continue Reading China’s Indigenous Innovation Policy and its Effect on Foreign Intellectual Property Rights Holders

By Li Ruihai and Su Juan, King & Wood’s IP Department

Patent ownership disputes arise, when a party challenges the ownership of a patent right at the State Intellectual Property Office (SIPO) and files suit with the People’s Court to seek rectification of the ownership of the patent. Article 135 of the General Principles of Civil Law of the PRC (Civil Law) provides that "unless otherwise stipulated by law, the statute of limitations to file civil actions with the People’s Court shall be 2 years." The PRC Patent Law (Patent Law) provides no specific provision regarding the statute of limitations in patent ownership disputes. Hence, issue arises as to whether the court can, upon the defendant’s request, dismiss the plaintiff’s claim for patent ownership due to the statute of limitations for civil actions.

Continue Reading Limitation of Actions Regarding Patent Ownership Disputes

By Jiang Ling, Partner, King & Wood’s Trademark Department

The term "works" used and protected under the Copyright Law refers to original intellectual creations in the literary, artistic and the scientific domain, in so far as they are capable of being reproduced in a certain tangible form. As for literal works, this refers to the works manifested in text form, no matter how long it is or what type or format of literature it uses. As long as it is original, it should be within the scope of protection by the PRC Copyright Law (as well as Trademarks as previously discussed). Therefore, it can be concluded that an advertising slogan is in principle not excluded from copyright protection on the condition that it is original. However, the Copyright Law does not define what "original" is. Judging by judicial practice, the expression of original works may not necessarily be unprecedented, and re-creation based on previous intellectual works of others is not forbidden either. In general, works possess originality as long as it is created by the author independently rather than plagiarizing others’ works which bears some personalized characteristics. Thus, it is possible for slogans to be copyrighted.

Continue Reading Just Do It!? Protecting Advertising Slogans in China Part II