"IP"

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By Jiao Hongbin  King & Wood Mallesons’ Intellectual Property Group

On March 31, 2012, the National Copyright Administration of the PRC (NCAC) released the Draft Amendments to the Copyright Law of thePRC (the “Copyright Law”) (the “Draft Amendments”) and the Brief Explanations on the Draft Amendments (“Brief Explanations”)[i] for soliciting public opinions. Unlike the two previous revisions, the Draft Amendments proposed by China on its own initiative are home-grown. 

The prevailing Copyright Law was adopted by the 7th Standing Committee of the National People’s Congress (NPC) on September 7, 1990 and became effective on June 1, 1991. Two revisions in 2001 and 2010 were undertaken in light of China’s involvement with the World Trade Organization (WTO). The first revision was made for China’s entry into the WTO, where modifications and complements were made to coordinate the inconsistencies between the Copyright Law and the Trade-Related Aspects of Intellectual Property Rights (TRIPS); two articles were revised in 2010 with an aim to enforce a WTO panel ruling on the dispute over intellectual property rights (“IPRs”) between China and the United States.Continue Reading Key Disputable Issues regarding the Draft Amendments to China Copyright Law

By Sun Mingfei King & Wood Mallesons’ Dispute Resolution Group, Guangzhou Office

As Chinese courts rarely accept copyright disputes concerning computer user interfaces, the case of Shenzhen TP-LINK Technologies Co., Ltd vs. Shenzhen Tenda Technology Co., Ltd and Zhang Yabo (the "TP-LINK Case") represents a significant precedent in dealing with similar cases. It is highly controversial even for copyright or computer experts to answer questions such as whether computer user interfaces are under the protection of China’s Copyright Law or how to judge originality of a work in the case.Continue Reading Landmark Copyright Case on Computer User Interfaces

by Feng Ai and Chen Xunan  King & Wood’s Finance Group

In the process of an Initial Public Offering ("IPO"), the issuer’s intellectual property ("IP"), such as trademarks, patents, copyrights and know-how, is often directly related to the issuer’s competitive advantage and long term profitability. The Examination and Verification Committee of the China Securities Regulatory Commission ("Examination and Verification Committee") often takes this fact into consideration.

I. IP Issues Arising from A share IPOs within Legal Framework

This article focuses on IP rights from the perspective of A share public offerings, and particularly on trademark, patent, know-how and copyright issues that have caught the attention of the Examination and Verification Committee.Continue Reading Intellectual Property Issues Arising from A Share Initial Public Offerings

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 Cecilia Lou and Steven Yao King & Wood’s Intellectual Property Group

The Patent Law of the People’s Republic of China(1)("Patent Law") and Regulations for the Implementation of the Patent Law of the People’s Republic of China(2) ("Implementing Regulations") has drawn our attention to rewards and remuneration for inventors. The Patent Law stipulates that employers must pay reasonable rewards and remuneration to inventors of a service invention and the Implementing Regulations explicitly address the amount payable. For purposes of encouraging technological innovation and industrialization, the change is sure to play a positive role in motivating employee initiatives and promoting social productivity. However, it will also bring certain challenges to many employers in terms of compliance with reward and remuneration issues in China, especially when the Blue LED case in Japan resulted in a 70 million RMB settlement.

The key issue of concern to employers is: Whether the huge commercial benefits acquired by the employer based on a service invention made by its employee do not correspond to the remuneration received from the employer due to the creation of the service invention agreed in the remuneration clause in China, whether the employee shall be entitled to request the court to modify or even revoke the remuneration clause and request some additional remuneration?Continue Reading Dodging Service Invention Disputes

by Alex Zhang King & Wood Intellectual Property Group

As the second largest economy in the world, China is emerging to the center of the world’s economic stage. This emergence has been accompanied by constant changes in its legal and economic sectors. The intellectual property sector also has witnessed numerous recent changes. There have been significant new advances in China’s national innovation policies. New trends in Chinese patent filings have emerged. A growing number of Chinese companies are creating their own IP and increasingly filing infringement suits against foreign companies and their local competitors in China. China’s third patent law amendment has materially changed patent practice and procedures in that country.

These changes and trends will have profound impacts on foreign companies doing business in China, especially in intellectual property areas. What are the best ways to deal with these important changes? The following several considerations should be evaluated in determining a company’s patent strategies in China.Continue Reading Key Considerations for Patent Strategies in China

By Miao Qu of King & Wood’s Intellectual Property  Group

This article continues to discuss Core Intellectual Property Issues in M&A and Investment. The first part of this article was published on Chinalawinsight on September 2011.

V. The Effect of the M&A on the IP Rights Agreements of the Acquiree

During the due diligence in a merger, special attention should be paid to the effect of the investment or merger on the intellectual property rights of the acquiree, especially the effect on license contracts. Two common problems are when the acquisition triggers a clause in a license contract changing control in a way that alters the effectiveness of the agreements, or some other clause in the agreements hinders future business of the acquired entity.

Case 5: A transnational company intended to purchase the domestic mobile communication department of another transnational company. During the due diligence investigations, we found a license contract between the acquiree and a state-owned enterprise ("SOE"). In this contract the acquiree licensed the core technology of the department to the SOE for exclusive use, and ensured that the core technology would not be transferred or licensed to any third party in specific locations. We contacted the management team of the acquiror and learned that the acquiror intended to transfer the technology to other domestic entities of the acquiror for implementation and management pursuant to its business framework. Therefore, we advised the acquirer that the acquiree should negotiate with the SOE to amend the license contract to ensure that the business could operate according to plan after the transaction.Continue Reading Core Intellectual Property Issues in M&A and Investment （Part II of II）

By He Wei and Wang Yaxi of King & Wood Dispute Resolution Group

When a domain name is in conflict with the prior rights of others (e.g. the trademark rights, the rights of the company name, etc.), there are two approaches of settling the disputes: 1) the prior right holder may file a complaint to one of two domain name dispute resolution centers, or 2) the prior right holder may bring an action to the court or refer the dispute to arbitration. For the sake of efficiency and cost control, the prior right holder will typically seek a resolution from a domain name dispute resolution center(1)("DNDRC"), on the condition that the disputed domain name has been registered for less than two years.

Continue Reading Bridging DNDRC Decision and Judicial Judgment on Domain Name Dispute

By King & Wood’s Trademark Practice

The Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China was promulgated on October 28, 2010 and will come into force on April 1, 2011. The new law absorbs the latest achievements of the research and legislation in the field of the private international laws, which is widely viewed as having reflected the contemporary legislation ideas and incorporated innovative rules, and the issuance of this law would have accomplished the systemization and modernization of the conflicting rules concerning foreign-related relations in Chinese legislation system.Continue Reading China’s New Foreign-Related Civil Relations Law Harmonizes Conflicting Rules