New Era, New Frame, New Balance ——The Opening Ceremony of the 9th China IP International Annual Forum
On January 12th, the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China hosted by China IP was held successfully in Beijing.
The forum has been held successfully for eight times. And this time, the forum focused on “New Era, New Frame, New Balance”, discussing the new development of IP and Innovation of China’s enterprises in the new changing period. Based on its own foothold in the IP frontier and fully grasping the development trends of the IP industry, the forum attracted representatives of government, experts, scholars, IP agencies representatives and hundreds of companies' IP managers from China, United States, France, United Kingdom and Japan and other countries and regions for over 800 people.
Liu Chuntian, Chairman of the China Intellectual Property Law Association; Lin Guanghai, Presiding Judge of the Supreme People’s Court of the People’s Republic of China; Lei Xiaoyun, Director of Patent Management Division of CNIPA (China National Intellectual Property Administration) attended the opening ceremony and delivered a speech. The opening ceremony was held by Tommy Zhang, President and Editor-in- chief of China IP.
At the Forum of China IP Management Trend, experts and scholars from the academic and practical circles took stock hotspots, trends and standards related with 2018 China's IP administration, legislation, justice and predicted the new trends of China's IP development in 2019. They jointly explored the new international and domestic path driven by intellectual property right and innovation.
Yang Boyong, Chief Judge of Civil Adjudication Tribunal No.3 Beijing Higher People's Court introduced the outstanding characteristics of the IPR trial work of the Beijing court in 2018 and related measures to further strengthen the protection of IPR. Huang Yong, Member of the Expert Advisory Group of the Anti-monopoly Committee of the State Council and Chairman of the Competition Law Center of the University of International Business and Economics gave a speech on the theoretical and practical issues of IP and anti-monopoly. Hu Huiji, Director of Legal Affairs of iQIYI Inc., shared the information on IP protection issues arising from the current Internet technology innovation and the rethought of its corresponding solution.
Li Yanhua, Director of Patent, Intellectual Property and Licensing Department of Eri csson (China) Communications Co., LTD; Jiang Danming, Executive Vice President of Chofn Intellectual Property and Dean of Chofn Intellectual Property Institute; Ma Yufeng, Chief Representative/ Partner of Orrick , Herrington & Sutcliffe LLP (Shanghai); Song Jianfu, General Manager of CPA Global (China) made the speech separately focused on“Continuous Innovation – Opportunities and Challenges”“IP Law Should not be Included in the Civil Code”“The Latest Developments and Countermeasures of Patent Litigation under the China-US Trade War”and “CPA Global Helps You Make Business Decisions”.
On the evening of January 12th, the 2019 Awarding Ceremony & Gala Dinner announced several awards including “2018 Outstanding Inhouse IP Managers in China”“2018 Outstanding IP Service Teams in China”“2019 Most Recommended International IP Agencies”“2018 Outstanding IP Management Teams in China”and“2018 China IP Most Influential People”.
Meanwhile, at this meeting, the“Sunshine IPers”Charity Fund initiated by China IP and Legal Development Foundation announced officially to the public. This fund project was established on December 12th, 2018 under the Beijing Sunshine Intellectual Property and Legal Development Foundation to help employees in the IP industry who have serious disease in China.
Interpret the Hot Spots and Trends in 2018 and Predict the New Trend of Development in 2019 ——Forum of China IP Management Trend
The Forum of China IP Management Trend aims to interpret the hot spots, trends and patterns related to the administration, legislation and justice of IP rights in China in 2018, to predict the new trends in the development of IP rights in China in 2019, and to seek a new balance between administration and judicial protection of IP rights in China. Zhou Yan, Secretary-General of the China IP Development Alliance, presided over the meeting.
Yang Boyong,Chief Judge of Civil Adjudication Tribunal No.3 (IPR Division) of Beijing Higher People's Court first summed up the two characteristics of IP trials in Beijing courts in 2018. One is that the number of IP cases has reached a new high and the hot and difficult case emerged in endlessly. And the other is that after the establishment of the Beijing Internet Court and the IP court of the Supreme People’s Court, the trial pattern has undergone major changes. He said that in order to better play the leading role of the judiciary, the Beijing Higher People's Court has taken various measures to create a four-in- one linkage protection mechanism to comprehensively strengthen the protection of IP rights, and made the corresponding measures from four aspects: protecting scientific and technological innovation, protecting cultural creativity, optimizing the business environment and increasing the amount of compensation.
Professor Huang Yong, Member of the Expert Advisory Group of the Anti-monopoly Committee of the State Council and Chairman of the Competition Law Center of the University of International Business and Economics put forward new thinking on the relationship between IP protection and anti-monopoly from the view of scholars. He believes that the relationship between anti-monopoly and IP rights is not just a legal issue. In the present world situation, we should consider the relationship between the two from international and industrial perspectives. On this basis, we should consider legal theory, practice and law enforcement standards, and should also consider how to determine the relationship and rules between the two according to the industrial development in practice in China. In order to coordinate and solve the problem of the intersection of IP and anti-monopoly law, we must realize it by professional means.
Hu Huiji, Legal Director of the Legal Department of iQIYI emphatically discussed the relationship between technological innovation and IP protection from the current hot issues of artificial intelligence, blockchain, big data and data protection, as well as short video copyright. He believes that technological innovation will lead to a lot of IP disputes, but it will bring a lot of advantages in IP protection at the same time. The two are in constant change. In the new era, whether it is a new pattern of technological innovation or a new pattern of IP protection, they constantly produce a dynamic balance.
Li Yanhua, Director of Patent, IP and Licensing Department of Ericsson (China) Communications Co., LTD. shared a hot topic in communications technology, namely, the necessary patent for 5G standards. She believes that to promote the 5G standard and make it more conducive to social progress, it is essential to ensure that innovators receive a reasonable return because it is the only way to ensure that sufficient, sustained innovation continues to emerge.
Jiang Danming, Executive Vice President of Chofn IP, expressed his personal opinion on whether IP Law should be incorporated into the Civil Code. As to whether or not the Civil Code incorporates IP Law, and if so, how to incorporate them, as well as how to write IP rights is also a topic of great concern to the IP community. he thinks that IP Law should not be included in the Civil Code, expounds six main reasons, and expressed the theory of the "minority" voice.
Ma Yufeng, Chief representative of Shanghai Branch of Orrick Herrington & Sutcliffe spoke about IP issues in the context of the Sino-US trade war and some new developments in the United States patent litigation over the past year. He believes that the ban on ZTE in 2018 and the event of Ms. Meng in Huawei are only the beginning. In the future, there will be more cases against Chinese companies in the United States. Chinese companies should pay close attention to the progress of the Fairchild case. Once the boundaries of direct infringement are broken, the amount of compensation faced by Chinese companies will increase substantially.
Finally, Song Jianfu, General Manager of CPA Global (China), believed that the three most important things in the work of enterprise IPR are: improving the efficiency of daily routine work, highly supporting the company's business strategy, and reducing the risk of infringement and litigation. For this reason, he recommended to IPR a platform tool called The IP Platform which integrates all kinds of related APP. The platform enables data interconnection and helps developers and decision makers to get important information quickly.
Explore the Realization of Enterprise IP Value ——Forum of China IP Management Practice
From the perspective of enterprise IP management practices, Forum of China IP Management Practice shared the practical experiences o f I P management during the enterprise development, explored the value realization of enterprise IP, and assisted in expertise promotion and occupational development for IP managers.
From the perspective of the significance of innovation and IP, the host Qu Xiaoyang, Chief IP Consultant of Medtronic, Inc. in China, believes that the economic development in the modern society relies on the chain reaction o f innovation, but China does not fully solve the problem how t o push ahead economic development through innovation. On the one hand, all relevant statistical data of IP are increasing in the consecutive years. On the other hand, the economic growth data do not increase proportionally.
Therefore, he believes that IP must be pragmatic. When mentioning the IP management in the start - up enterprises, Mr. L iu Xiaochen, Senior Director of Global IP of NIO, believes that start-up enterprises usually own few patents during the stage of start-up so they shall seek a balance between prevention from being sued and prevention from being infringed. They shall take passive preventive measures and establish positive prevention in order to avoid risks. To this end, the patent application shall high light quality more than quantity, the application of core patents may not be disclosed beforehand, important projects shall be applied by enterprises owned, by themselves, new practical patents may not be negligible, and risk prevention shall be established.
When answering the question of how the value of IP is reflected in enterprises, Mr. Lin Yuqing, Partner of Lung Tin IP Agent Ltd., indicated that China' s IP managers shall make full use of the tool of patent competitiveness intelligence analysis. At present, China' s enterprises are weak in the patent competitiveness intelligence analysis. The patent team work is mainly focused on patent application and patent layout. They lack knowledge on current technical conditions inside and outside the industry, the current position and development prospects of their own technologies, technical research and development strategy selection. I n the coming years, the patent competitiveness intelligence analysis will become an inelastic demand of enterprise IP management.
Mr. Dou Xinlei, General Manager o f Beijing Hartend, gave a lecture about the IP value in the commercial competition, and he believed that enterprises shall exploit the value of IP from the perspective of innovation protection and commercial competition. Patent is a part in the market competition, trade secret is also a part in the market competition. Enterprises shall make full use of IP as a means of competition so as to maximize their commercial values, including explicit patent, trademark, copyright, implicit trade secret, and IP provisions in foreign contracts.
Mr. Zhao Li jie, IP Director of Megvii Technology Limited, shared the rule of IP management in all enterprises including tech unicorns, which consists of one goal (promote enterprises' commercial competitiveness), two objects (rights and risks), three conceptions (empowerment, mutual benefits and prospect), four principles (whole businesses, whole process, full embedding and focusing key areas), and five dimensions (team, culture, regulations, resources and tools).
Panel I: Legislative Confi rmation of Malicious Registration and Malicious Litigation form Administration to Judicial Practice
On January 10, the National Intellectual Property Administration, PRC (CNIPA) released intensively 2018 annual statistics on patents, trademarks, geographical indications and integrated circuit layout designs. The data shows that in the past year, the number of trademark registration applications in China has reached 7.371 million, and the number of trademark registrations has reached 5.007 million, including 4.797 million trademarks registered in China. The huge number of trademark applications and registrations has not only effectively boosted people's confidence in the development of China's market economy, but also caused some people to worry about trademark "overstatement". In view of the increasingly fierce disorder of malicious registration in the domestic market, the judicial, administrative departments and enterprises have done a lot of works in recent years as well as have achieved certain results, but they still can not suppress the further development of abusive trademark registration disorder from the source.
In view of this, the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China specifically set up the panel I with the theme of "Legislative Confirmation of Malicious Registration and Malicious Litigation form Administration to Judi c i a l Practice", invited guests from judiciary, academia and business to conduct in-depth exchanges and discussions on confirmation and suppression of trademark malicious registration and malicious litigation. The panel was presided over Qiao Rongde, Senior Partner of Lusheng Law Firm. Tom Duke, IP Attaché to China& Hong Kong of UK IPO, Amanda Yang, Lusheng Executive and Rui Songyan, Judge of Beijing Intellectual Property Court, delivered their keynote speeches respectively. Cheng Wenjuan, Chief Judge of Civil Adjudication Tribunal No.4 (IPR Division), Yuhang District of Hangzhou City, Alex Liu, Chief Inspector of IP Rights in China of BAYER, Miriam Yang, Lusheng Lawyer, and Fan Junwei, senior expert on intellectual property rights of Alibaba, participated in the panel discussion.
Qiao Rongde in his opening speech pointed out that there is still a separation between moral judgment and legal judgment in the identification of abusive trademark registration in China, and summarized the progress of domestic judicial practice in this respect in recent years.
In the keynote speech, Tom Duke made a speech on the theme of "Approaches to bad-faith trade mark applications in the UK and China", and put forward some constructive suggestions on the issue of abusive trademark registration in China based on British practice. Based on a research report issued by Lusheng Law Firm on trademark applications and registrations in China, Amanda Yang deeply analyzed the change tendency, influencing factors and category distribution of the trademarks applications and registrations in China, discussed the causes and characteristics of abusive trademark applications in the current Chinese market. Considering the case of Andis, a famous American pet goods manufacturer, represented by LuSheng Law Firm that their trademark “Andis” has been squatted by a Chinese company , Qiao Rongde made an analysis of the criteria for the recognition of "malicious squatting" by the Supreme people's Court and the Beijing Intellectual Property Court. Judge Rui Songyan made a speech with the theme of "Consideration of Malicious Factors in Juridical Practice" and introduced the changing trend in case trial of malicious squatting and malicious litigation in recent years.
Subsequently, in the collective discussion session, Liu Hongqiang, Yang Min, Fan Junwei, and Cheng Wenjuan, from the views of enterprises, law firms, e-commerce platforms, courts, and etc., discussed the first case in China in which the obligee took advantage of the Antiunfair Competition Law to crack down on a malicious squatter and to obtain compensation: Bayer AG vs. Li Qing
The forum has achieved a good response on the spot, and has certain guiding significance for administrative and judicial practice of malicious registration and malicious litigation in the future in China.
Panel II: Enterprises' Global Patent Attack and Defense Strategy Under "Strict Protection"
China’s consensus on strict protection of intellectual property rights has attained an unprecedented level. In March 2015, the CPC Central Committee and the State Council jointly issued the Several Opinions on Deepening the Reform of System and Mechanism and Accelerating the Implementation of Innovation-Driven Development Strategy, and proposed to implement the strict intellectual property protection system for the first time. Later, national leaders had mentioned several times the intellectual property protection on various occasions, and it had developed into a whole new climax in 2018. For instance, President Xi had proposed in his speech on November 5, 2018 to introduce a "punitive damages system" .
How to understand "strict protection"? Under the background of "strict protection", what are the changes in the refereeing ideas of intellectual property cases? How to formulate the strategy of protecting the rights of enterprises? These has become the particular concerns for companies. Based on this, the 9th China IP International Annual Forum specially set up panel II, with the theme of Enterprises' Global Patent Attack and Defense Strategy Under "Strict Protection", invited judiciary, academia and business figures to have an in-depth communication and discussion on this topic.
The panel was chaired by Cheng Yongshun, Director of Beijing Intellectual Property Institute. Song Jian, Deputy Inspector and Member of the Judicial Committee of Jiangsu Higher People's Court, Liu Ming, Intellectual Property Operations Supervisor of Gree Electric Appliances, Inc. of Zhuhai, Zeng Minhui, Senior Partner of ACIP, Qi Hongtao, Partner of Advance China IP Law Office (ACIP), and Li Lu, Senior Manager of ACIP, all focused on the prediction of intellectual property rights in the context of "strict protection", corporate intellectual property rights management and strategy, corporate patent invalidation and defense strategy, and response skills on US 337 investigation and so on.
In the keynote speech, Song Jian pointed out that the connotation of strict protection is the firm protection of what should be protected, and no protection of what should not be protected, to balance the legal affairs and public policy. She believes that the determination of infringement and the calculation of reasonable compensation are the two poles of strict protection, and it is recommended to promote the formation of a trial mechanism with the participation of both parties in the litigation, and promote the growth of the independent and impartial third-party institutions on the basis of a litigation mechanism with a substantive confrontation. Furthermore, to attain intellectual property judicial protection policy through "judicial leadership, strict protection, classification policy, proportional coordination".
Liu Ming generously shared a set of scientific systems established by Gree Group in the management of intellectual property rights, as well as experience in patent and trademark rights protection. By specific cases, he introduced the rights protection strategies from discovering infringement to confirming infringement, fixing evidence, selecting means, and summarizing.
The two guests shared their views on "strict protection" from the perspective of the judiciary and the enterprise. Zeng Minhui, Qi Hongtao and Li Lu from ACIP have given suggestions for corporate intellectual property management and rights protection strategies from their own fields.
Zeng Minhui summarized the patent rights protection strategies via cases sharing. It is recommended that enterprises should pay more attention to intellectual property work, improve the quality of product research and development, and lay a solid foundation for the layout of high-value new patents; professional agents should be entrusted to improve the quality of application documents.
By sharing invalid patent cases and typical cases, Qi Hongtao expounded the enterprise patent invalidation attack and defense strategy under "strict protection". Its rich experience sharing, vivid case analysis, and guiding thoughts from shallow to deep had won the praises of the participants.
Li Lu introduced the skills and precautions of the company's response to the 337 investigation from the aspects of response strategy selection, cost control, evidence collection, and claims game.
After the keynote speeches, the speakers and the audience had a lively Q&A, and conducted one-on-one on-site diagnosis and consultation on the intellectual property status of the company.
This panel has won a positive response, which has certain guiding significance for the development of patent rights protection strategy for Chinese enterprises in the context of "strict protection" in the future.
Panel III: Discussion of Hot Issues on Judicial Trial of Copyright
On December 26, 2018, the "First Case" of Beijing Internet Court, which received great attention of society——the dispute case of infringement on the transmission right of work information via internet, namely Tik Tok Short Video v. Huopai Small Video, was pronounced publicly. The plaintiff, Microlive Vision Technology Co., Ltd’s all requests were rejected on the judgement of first instance. The case produced a broad discussion about the similar issues within the industry.
Against a backdrop of impact on the traditional copyright concept by the ebullient short videos, the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China particularly established the parallel panel on the theme of "Discussion of Hot Issues on Judicial Trial of Copyright", invited people from judiciary, academia and enterprise industries to jointly discuss the copyright determination of short video, the judgement of short video infringement, the application of short video in the Copyright Law and the affirming factors with which the video sharing platform forms an information storage space and so on.
The most important feature of short video is the "shortness". How does this feature affect the recognition of short video as a work? The guests first conducted the discussion on this important question.
The guests reached a consensus that short videos of belonging to work should not be denied only because of their duration feature. Meanwhile, the guests analyzed other influence factors from the viewpoints of originality, scenario setting-up, market evaluation with which to determine whether short video belongs to work.
Additionally, the guests exchanged their views on how to judge the notice sent by obligee to the infringing platform is valid, how to determine whether the internet service providers have fulfilled their reasonable obligations and so on. Some guests believed that the channels and methods of obligee to send notice won't affect the judgement validity of sending the notice and the obligee only need to prove that the providers of the internet service have been informed of the notice; But other guests believed that the obligee should respect the industry practice, actively choose the public complaint channels of the network service providers to send the notice of infringement, fully reflecting their good will.
The third topic focused on the determination of the nature of short videos' watermarks. In the case of "Tik Tok vs. Huopai", should the "Tik Tok" watermark and the watermark of users' personal information in the short video be determined as a technical measure to protect copyright, or the electronic information to manage rights? The guests believed unanimously that technical measures must have the validity of preventing other people from using the work, and at present, a majority of short videos can only show the identities of the transmitters and users of the video work, so it will be more reasonable to determine them as electronic information of managing rights. At the same time, the guests also discussed the legal relation between the behavioral nature and the infringement obligations of the short video platforms, who acted as the network service providers or content service providers of information storage space.
In the last topic, the guests explored the calculation methods and reference factors of the damage compensation of short video infringement. In the case of "Tik Tok vs. Huopai", the referential factors using to calculate the tort damages advocated by the plaintiff mainly included the video view, play time and the followers count of the original author's and other flow values.
The guests affirmed the key role of the flow value as a reference standard of calculating the short video tort damages.
At the end of the above discussions, the guests and the audience had an interactive exchange on other issues related to the judicial judgement of copyright. With rich information, plural view points and profound exploration, the panel had excellent guidance meaning for solving the new problems in copyright judicial field caused by short videos. The panel was chaired by Li Yang, Professor of Law School of Sun Yat-sen University and Qi Lei, Judge of Civil Adjudication Tribunal No.3 (IPR Division) of Beijing Higher People's Court; Yao Bingbing, Chief Judge of Nanjing IP Tribunal; Yang Dejia, Chief Judge of IP Tribunal of Beijing Haidian Court; Li Zizhu, Chief Judge of IP Tribunal of Beijing Chaoyang Court; Yu Jie, Judge of Wuhan IP Tribunal; Deng Hongguang, Professor of School of Law, Southwest University of Political Science & Law and the Director Diao Yunyun from Tencent Litigation Department attended as discussion guests.
Panel Ⅳ: International Layout Strategy of Intellectual Property of Enterprises under the New Situation ——The 2019 Annual Meeting of Alliance of Global Intellectual Property Service (AGIPS)
On November 5, 2018, the first China International Import Expo was held in Shanghai. President Xi Jinping attended the opening ceremony and delivered a keynote speech entitled "Building an Innovative and Inclusive Open World Economy Together".
President Xi stressed that China's economic development in the past 40 years has been achieved under the open conditions, and that China's future high-quality economic development must also be carried out under the open conditions. China is encouraging enterprises to "going out", however, enterprises are facing a series of problems in the field of intellectual property in the process of "going out". In the new situation, it is a hot topic in the field of intellectual property to carry out a reasonable international layout of intellectual property of enterprises in order to avoid obstacles in the process of "going out".
At the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China, a special sub-forum was set up to invite academic, judicial and business people to come together to discuss in depth under the theme of "International Layout Strategy of Intellectual Property of Enterprises under the New Situation". The sub-forum was chaired by Tommy Zhang, President and Editor-in-Chief of China IP Magazine, and keynote speeches were made by Andy Y.Sun, Executive Director of Asia Pacific Legal Institute, Liang Zhiwen, Patent Agent of Innotrack Intellectual Property Law Firm, Chen Yang, Judge of Shenzhen IP Tribunal, Rachel Huang, General Manager & Executive Partner of Ifuture Intellectual Property Consulting(Shanghai) Co., LTD. and Ren Chuanxia, Director of Intellectual Property Department of Hanvon Technology.
Tommy Zhang said that the significance and role of the establishment of Alliance of Global Intellectual Property Service (AGIPS) lie in a sharing platform for cross-border communication to achieve the goal of win-win cooperation.
In the keynote speech entitled "High Value Patent and Intellectual Property Operation", Andy Y.Sun believed that technologies, products and brands are the "high value" that enterprises should attach importance to.
In the speech entitled "Overseas Intellectual Property Risks and Countermeasures", Liang Zhiwen illustrated the trend of intellectual property of overseas businesses and the risk coping strategies, from a commercial perspective, by taking Europe and US as examples. When referring to the "Rules of Evidence in Intellectual Property Litigation", Judge Chen Yang said that in the daily intellectual property litigation, we should attach importance to five principles, namely, the rule of claimer to provide evidence, the rule of superior evidence, the rule of presumption of evidence, the rule of exclusion of illegal evidence, and the rule of comprehensive and objective examination of evidence. Rachel Huang under the theme of "Enterprise Fine Intellectual Property Risk Management", discussed from three perspectives: the regional characteristics of patent system, the commonness of fine patent regional layout risk management, and the practical points of fine patent regional layout risk management. Ren Chuanxia expounded the importance of intellectual property to enterprise development and market, under the theme of "The Strategy of Cultivation, Identification and International Layout of High-Value Intellectual Property of Enterprises" by taking the 20-year development course of Hanvon Technology as an example.
After the keynote speeches, an interactive question and answer was made between the audience and the speakers. The content of this sub-forum is unanimously praised by the audience. We believe that it will inspire enterprises to develop the international layout of intellectual property under the new situation.
