SEPT

The 10th China-ASEAN Intellectual Property Office Directors' Meeting held in Hangzhou

On Sept 2, the 10th China-ASEAN Intellectual Property Office Directors' Meeting was held in Hangzhou. Shen Changyu, director of CNIPA, presided over the meeting and delivered a speech. Shen Changyu pointed out that 2019 marked the 10th anniversary of the signing of the Memorandum of Understanding on China-ASEAN Cooperation in the Field of Intellectual Property, and both China and ASEAN had made rapid progress over the past decade. In the past year, China's intellectual property management system and operating mechanism had been historically reconstructed, and new and remarkable achievements had been made in the creation, protection, application, service and management of intellectual property rights. The meeting heard a report on the implementation of the China-ASEAN IPR Cooperation Plan 2018-2019, and examined and approved the China-ASEAN IPR Cooperation Plan 2019-2020. According to the new plan, China and ASEAN would further expand and deepen cooperation in improving the quality and efficiency of intellectual property examination, personnel training and exchanges. The 11th China-ASEAN meeting of Directors of intellectual property offices will be hosted by Vietnam Intellectual Property Office in Da Nang, Vietnam in 2020.

The 10th China Intellectual Property Annual Conference opened in Hangzhou

On Sept 2, the 10th China Intellectual Property Annual Conference (CIPAC) with the theme of "IP, evolving with the New Era" opened in Hangzhou. Upgraded from China Patent Annual Conference to the China Intellectual Property Annual Conference, it covered patents, trademarks, geographical indications, and focused on operation, service, rights protection, legislation, judicial and other aspects. CIPAC closely revolved around the theme, holding a series of activities, such as opening ceremony and keynote speeches, 15 forums, round-table discussions, press conferences. The participants discussed the ecological chain of intellectual property operation under economic globalization, trademark management strategy and brand value realization, international trade and overseas protection of intellectual property rights, commercial operation of geographical indications in global trade, and intellectual property administrative adjudication system interpretation and practice in depth. CIPAC also held patent information services and product exhibitions, trademark exhibitions and Chinese geographical indications exhibition.

The Revision of the Patent Examination Guidelines Will Come into Effect on Nov 1

On Sept 23, CNIPA issued the Announcement on Revising the Guidelines for Patent Examination (No. 328). The Announcement showed that in order to meet the needs of the rapid development of new technologies, respond to the new demands of innovative subjects on examination rules and modes, and improve the quality and efficiency of patent examination, CNIPA decided to amend the Patent Examination Guidelines, which would come into effect on Nov 1, 2019. In recent years, some questions had been raised about the examiners' use of the "three-step method" and common sense in creative evaluation. On Apr 4, 2019, CNIPA published the Revised Draft of Patent Examination Guidelines (Draft for Soliciting Opinions) and its explanation, which systematically revised the relevant parts of the examination guidelines on creativity, including further clarifying the general path of understanding inventions, standardizing creative comment ideas, strengthening the burden of proof of examiners, in order to respond to the needs of society in a timely manner and promote the improvement of the quality of patent application and examination.

Patent Award

The Guangdong Provincial Market Supervision Administration issued the Detailed Rules for the Implementation of the Guangdong Provincial Patent Award Measures, which would come into force on Sept 1, 2019, and would be valid for five years. The revised contents of the Detailed Rules are mainly divided into three categories, including: (1) revising the name of awards and adding relevant awards. (2) Increasing the number of Guangdong patent awards and the amount of awards. The gold awards has been increased from 15 to 20, and the number of prizes has been increased from 100,000 Yuan to 300,000 Yuan. Excellence awards have been increased from 55 to 60, and the prize has been increased from 50,000 Yuan to 100,000 Yuan. 40 silver awards have been added, the prize is 200,000 Yuan. For individuals who have won the Guangdong Outstanding Inventors Award, the prize has been increased from 20,000 Yuan to 100,000 Yuan. (3) Adjusting the award amount of China Patent Award. The enterprises and individuals that have won the China Patent Silver Award or the China Silver Design Award shall be given a reward of 500,000 Yuan for each item, and for the enterprises and individuals that have won the China Patent Excellence Award or the China Design Excellence Award, the bonus shall be adjusted from 500,000 yuan to 300,000 yuan.

Circuit Mediation

The Intellectual Property Court of the Supreme People's Court conducted circuit trials in Jinan and Tai'an, Shandong Province, successfully mediating the invention patent dispute between the appellant NT2C Group Co., Ltd., the appellees Shandong Huixing Science and Technology Development Co., Ltd., and Juye Yuantai Real Estate Co., Ltd., contributed to the substantive resolution of the civil and administrative disputes over the intellectual property rights involved. This was the first time that the Intellectual Property Court of the Supreme People's Court conducted circuit mediation. The parties involved in the same patent dispute successively filed two civil lawsuits and requested for invalidation of the patent, the contradictions being intertwined and complicated, and the parties located in various parts of Shandong, made it idifficult for courts to try. To this end, the seventh collegial panel of the Intellectual Property Court of the Supreme People's Court decided to conduct circuit mediation. In the past month, the Intellectual Property Court of the Supreme People's Court had conducted three circuit trials and successively went to Jiangsu, Guangdong, Shandong and other provinces to handle cases on the spot.

Professional Claims

On Sept 3, the Symposium on Professional Claims, jointly attended by market regulators, China Consumer Association and business representatives, was held in Beijing. Representatives from all walks of life and experts attending the meeting believed that in the past three months, China had issued two articles calling for cracking down on "malicious reporting of illegal profit-making activities" and "racketeering in the name of 'anti-counterfeiting'," which has sent a clear policy signal. On May 9, the CPC Central Committee and the State Council issued the Opinions on Deepening Reform and Strengthening Food Safety, proposing that "malicious reports of illegal profit-making activities should be severely cracked down on in accordance with the law." On Aug 8, the General Office of the State Council issued the Guidance on Promoting the Healthy Development of the Platform Economy, calling for effective protection of the legitimate rights and interests of platform economic participants and cracking down on extortion in the name of "cracking down counterfeiting." Since the beginning of 2019, market regulators in many places have successively introduced comprehensive management measures to curb the reporting of malicious complaints against "professional claims"; local courts have also announced a number of "professional claims" cases involving extortion.

Conversant Wireless Licensing

On September 16, the Nanjing Intermediate People's Court made a judgment of first instance in three cases in which Huawei Technology Co., Ltd., Huawei Device Co., Ltd., and Huawei Software Technologies Co., Ltd. sued Conversant Wireless Licensing S.A.R.L over non-infringement of patent rights and standard essential patent royalties, confirming the standard essential patent license rates involved by Huawei and Convinson. The court clearly defined the licensed patents, licensed products and licensed acts involved in the case, and did not support Huawei's request to confirm that the manufacturing, sale and promise to sell mobile terminal products in China did not infringe upon the three invention patents enjoyed by Conversant. The core of the dispute was the license fee, which, after hearing, the court finally adopted the top-down method of calculating FRAND license rates. It was the first dispute over standard essential patent license fees adjudicated by the Nanjing Intermediate People's Court.

Internet of Things

The Hangzhou Internet Court accepted the unfair competition dispute brought by the plaintiff Shenzhen Science and Technology Co., Ltd. against Shanghai Digital Technology Co., Ltd., Shanghai Technology Co., Ltd., Shanghai Internet of things Co., Ltd., Hangzhou Technology Co., Ltd. In this case, the plaintiff believed that the defendants transferred the users who belonged to the plaintiff to the platform operated by the defendants by improper means, which seriously violated the legitimate rights and interests of the plaintiff and should bear the corresponding legal liability in accordance with the law. The plaintiff asked to order the four defendants to stop unfair competition, apologize and jointly compensate for the economic losses and reasonable expenses totaling 4.98 million Yuan. This was the first case involving intellectual property dispute of the Internet of Things filed and accepted by the Hangzhou Internet Court. In the environment of the Internet of things, how to reasonably define the boundaries of the rights and obligations of all parties, how to accurately judge whether the act involved in the case constitutes unfair competition, how to determine the subject of liability and the amount of compensation when the tort is established, were the focus of this case.

China Railway High-speed

In response to the application by foreign enterprises to revoke the registered trademark of "CRH" of China's Railway High-speed, the Beijing Intellectual Property Court held that the previous decision of the Trademark Appeal Board to revoke the "CRH" trademark did not have enough basis, and the decision of the first instance judgment was reversed, asking the Trademark Appeal Board to make a new decision. "CRH" is the abbreviation of "China Railways High-speed". At present, the bodies of all high-speed trains in China are sprayed with obvious "CRH" logos. The trademark right of "CRH" logo is registered and enjoyed by China Academy of Railway Sciences Corporation Limited. Earlier, a British company asked the Trademark Appeal Board to revoke the trademark on the grounds that the China Academy of Railway Sciences did not use the trademark in accordance with the law. After examination, the Trademark Appeal Board decided to revoke the trademark rights in advertising, market research and other items of the trademark. The China Academy of Railway Sciences was not satisfied with the decision and sued to the Beijing Intellectual Property Court.

OCT

Several Opinions on Further Doing a Good Job in the Utilization of Foreign Investment

On Oct 30, the State Council issued Several Opinions of the State Council on Further Doing a Good Job in the Utilization of Foreign Investment. The Opinions required to focus on ensuring the national treatment of foreign-invested enterprises, create an open, transparent, and predictable environment for foreign investment, continuously deepen the reform of streamlining administration and optimizing services, and further do a good job in the utilization of foreign investment. The Opinions put forward a total of 20 policies and measures in four aspects, emphasizing the improvement of the working mechanism of intellectual property protection, the establishment of a rapid collaborative protection of intellectual property rights and the joint punishment mechanism of credit, and the continuous promotion of arbitration and mediation of intellectual property disputes and the diversified settlement mechanism of intellectual property disputes. It required to improve the procedures for the revocation of registered trademarks, improve the protection system of geographical indications, improve the e-commerce intellectual property protection mechanism, improve the e-commerce platform patent infringement determination notice, removal rules, improve the patent law enforcement and rights protection cooperation scheduling mechanism in e-commerce field, actively use standardized methods to strengthen intellectual property protection. The Opinions also made it clear that the above work was the responsibility of the Ministry of Commerce, the General Administration of Market Supervision, CNIPA, and the people's governments at the provincial level in accordance with the division.

The State Council Promulgated the Regulation on Optimizing Business Environment

On Oct 22, Premier Li Keqiang of the State Council signed Decree No. 722 of the State Council, announcing that the Regulation on Optimizing Business Environment had been adopted at the 66th Executive Meeting of the State Council on Oct 8, 2019, and would enter into force as of Jan 1, 2020. China's first law on optimizing the business environment has been formally issued. The Regulation conscientiously summed up China's experience and practices in optimizing the business environment in recent years, solidified the reform measures that have been proved to be effective, satisfied by the people, and supported by the main body of the market with laws and regulations, focusing on the shortcomings of China's business environment and the difficulties reflected by the main body of the market, and making corresponding provisions on the international advanced level for improving the system and mechanism. Article 15 of the Regulation stipulates: "China establishes a system of punitive damages for intellectual property infringement, promotes the establishment of a rapid and coordinated protection mechanism for intellectual property rights, and improves the diversified settlement mechanism of intellectual property disputes and the assistance mechanism for safeguarding intellectual property rights to strengthen the protection of intellectual property rights. China will continue to deepen the reform of trademark registration and patent application facilitation, and improve the efficiency of trademark registration and patent application examination." In view of the issue of intellectual property protection, a series of policy combinations would be introduced in the near future.

Substantial Progress Made in Sino-US Trade Negotiations

From Oct 10 to 11, Liu He, member of the Political Bureau of the CPC Central Committee, vice premier of the State Council, and Chinese leader of the Sino-US Comprehensive Economic Dialogue, held a new round of high-level Sino-US economic and trade consultations in Washington with US Trade Representative Robert Lighthizer and Treasury Secretary Steven Mnuchin. Under the guidance of the important consensus between the heads of state, the two sides held frank, efficient and constructive discussions on economic and trade issues of common concern. The two sides made substantial progress in agriculture, intellectual property protection, exchange rate, financial services, expansion of trade cooperation, technology transfer, dispute settlement and other areas, discussed the arrangements for follow-up consultations and agreed to work together towards a final agreement. This Sino-US trade talk had made phased progress, but there were differences between the two sides in the field of high technology, intellectual property rights and market system, and there were still uncertainties in the follow-up negotiations.

Preferred Place

Chen Jinchuan, vice president of the Beijing Intellectual Property Court, revealed in the Summary of Foreign Intellectual Property Cases of the Beijing Intellectual Property Court that, since its establishment in Nov 2014, according to the analysis of the trial data of foreign-related cases up to the first half of 2019, the number of foreign enterprises' mutual litigation in Beijing increased, reflecting that Beijing was gradually becoming a "preferred place" for intellectual property protection. The standard of compensation for intellectual property damage had been continuously improved, and the protection of intellectual property rights had been continuously strengthened. Over the past four and a half years, the Beijing Intellectual Property Court has accepted 13,736 foreign-related intellectual property cases (excluding Hong Kong, Macao and Taiwan), accounting for 21.1% of the total caseload. The number of cases received showed an increasing trend year by year, with the average case received increased of about 8.4% and the average case closed increased of about 40.4% annually. The Beijing Intellectual Property Court had a high proportion of foreign-related cases involving a wide range of regions, reflecting the close ties between Beijing and the national economy, and the world. Among them, most of the technical cases involved new technologies and new industries, and there were also many cases involving international well-known trademarks and trade names.

WeChat Screenshot

Shenzhen Nanshan District People's Court accepted a series of cases of copyright infringement and unfair competition disputes among Tencent Technology (Shenzhen) Co., Ltd. and Shenzhen Tencent Computer System Company Limited, v. a Shenzhen network technology company. This series of cases was the first involving copyright infringement and unfair competition of software involving WeChat screenshots. Tencent Technology and Tencent Computer complained that nine mobile applications run by the defendant, such as screenshot app and dialogue generator, can generate screenshots of red packets, money transfers, wallets, conversations, friends' information exactly the same as the WeChat application interface. The defendant also provided a screenshot generator tool for the web version with the same function on its website operated. The above acts infringed upon the copyright of the two plaintiffs, such as the right of reproduction, the right of distribution and the right of information network dissemination, and constituted unfair competition. The two plaintiffs demanded that the defendant immediately stop the infringement, eliminate the impact and compensate for losses in 9 cases totaling 10.31 million Yuan.

The Battle of Jordan

On Oct 16, the Supreme People's Court retried the administrative dispute between the plaintiff Michael Jeffrey Jordan (American basketball star) and the defendant, the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce, and the third party, Jordan Sports Co., Ltd. over a trademark. SPC held that Michael Jeffrey Jordan had the right to portrait of his sports images, but Jordan Sports's humanoid trademark logo did not reflect Jordan's personal characteristics, was not identifiable, and did not damage Jordan’s right to portrait. Jordan Sports registered the "Danqiao" trademark in 1991 and changed its name to Jordan Sports in 2000. In 2012, Jordan asked for the cancellation of 78 related registered trademarks of Jordan Sports on the grounds that Jordan Sports violated his right of personal name. The Trademark Review and Adjudication Board rejected his application, and Jordan continued to file administrative lawsuits, which lasted for about eight years.

Hong Kong Patent

Original Grant Patent System would be introduced in Hong Kong to provide another way for patent applicants to seek standard patent protection in Hong Kong. The amendments to the Patents Ordinance and the Patent Rules in Hong Kong were gazetted on Oct 11, 2019, and the new patent system would come into effect on Dec 19 of the same year. Under the new system, patent applicants can file standard patent applications directly in Hong Kong, which is no longer limited to the current "re-registration" system, that is, applicants must first submit the corresponding application in a designated patent office outside Hong Kong. The new patent system also optimized the short-term patent system and prohibited the use of certain misleading or confusing titles or descriptions related to patent practice in Hong Kong. The Hong Kong Commerce and Economic Development Bureau said that the implementation of the new patent system would be a milestone in the development of Hong Kong's patent system and would help promote Hong Kong's development into an innovation and intellectual property trading centre.

Association Monopoly

The State Administration of Market Supervision issued a written decision on administrative punishment of the Heze Automobile Industry Association organizing the operators of the industry to reach a monopoly agreement. The decision pointed out that in accordance with Article 49 of the Anti-Monopoly Law, the Shandong Provincial Market Regulatory Bureau organized a case investigation on the suspected monopoly agreement reached by the Heze Automobile Industry Association in July 2018, and made an administrative penalty decision on Oct 18, 2019, to impose a fine of 300,000 Yuan on the Association. This was the first case in which the market regulatory authorities in Shandong Province penalized the monopolistic behavior of trade associations. The decision also pointed out that in recent years, the Association had taken itself as the main body on the grounds of fierce competition in the automobile sales industry, market chaos, and a variety of auto shows, issuing notices, convening meetings of member units, organizing member units to sign letters of commitment. Member units were required not to participate in other auto shows, otherwise they would not be allowed to participate in association activities, or their membership would be canceled.

Geographical Indication

On Oct 31, CNIPA issued the Notice on the Determination of the Project to Promote the Use of Geographical Indications in 2019. The Notice pointed out that in 2019, the project to promote the use of geographical indications would focus on geographical indications to help poverty alleviation, which would be determined after voluntary declaration by local intellectual property offices, examination and recommendation by provincial intellectual property offices, and comprehensive evaluation and publicity by CNIPA. In the next step, CNIPA would strengthen guidance and support for selected projects, strengthen follow-up management, sum up experience in a timely manner, do a good job in publicity and promotion, and ensure that the implementation of the project would be carried out well and quickly. China would take the lead in forming a number of advanced experiences and successful cases in which geographical indications accurately help poverty alleviation, enhance brand value, and promote industrial development. By the end of September, 2019, China had registered 5,135 certification trademarks of geographical indications (including 192 from abroad), approved 2,380 products of geographical indications (including 61 from abroad), and approved 8,351 enterprises for the use of official geographical indications, with a related output value of more than one trillion Yuan.