The Supreme People's Court issued the Decision on Amending the Provisions of the Supreme People's Court on Several Issues of the Intellectual Property Tribunal

On October 27, 2023, the Supreme People's Court issued the Decision on Amending the Provisions of the Supreme People's Court on Several Issues concerning the Intellectual Property Tribunal (the 2023 Provisions). Contrast released in 2018, the Supreme People's Court on some issues of intellectual property court (2018 regulations). The 2023 Provisions no longer use civil or administrative cases as a category of categorisation criteria, adopting the subject matter involved as the basis for categorising cases on appeal, e.g., patents, new varieties of plants, layout designs of integrated circuits, and technical secrets.

In terms of admissibility criteria, the 2023 Provisions limits the admissibility criteria for civil and administrative second instance cases related to utility model patents, technical secrets, and computer software accepted by the Intellectual Property Court of the Supreme People's Court to be "significant and complex", but remain unchanged in respect of cases such as patents for inventions and new varieties of plants. In addition, the 2023 Provisions deleted the provisions on the online handling of cases by the people's courts and the special provisions on case jurisdiction, and adjusted the relevant provisions on the disclosure of cases to require that information on the filing of cases, the composition of the collegial panel, the trial process and the adjudicative documents be made public in accordance with the law. The 2023 Provisions will come into force on 1 November 2023.

ZLWD Commentary：

The new provisions of the Supreme People's Court highlight a change in the criteria for intellectual property court hearings, which are no longer categorised by the type of case, but rather by the specific subject matter involved. Significant and complex cases will be focussed on in the areas of utility model patents, technical secrets and computer software. This change also improves the transparency and fairness of case adjudication.

The State Council Information Office held a regular briefing on the Special Action Plan for Patent Transformation and Application (2023-2025)

The regular briefing on the Special Action Programme for Patent Transformation and Utilisation (2023-2025) (the Programme) summarised five major features of the Programme:

First, it highlights patent industrialisation orientation and service to the real economy, and cultivates and promotes patent-intensive products;

Second, highlighting the dual role of patent system supply and technology supply, and promoting the deep integration of the patent chain with the innovation chain and the capital chain and the talent chain;

Third, giving full play to the advantages of the new type of national lifting system and the advantages of the mega market to stimulate the vitality of innovation and transformation power;

Fourthly, highlighting the overall consideration and classification of policies, coordinating the relationship between patent creation and application, innovation input and output, industrial development and security;

Fifthly, highlighting target-orientation and benefit-orientation, and establishing a monitoring mechanism for various types of data on patent implementation, transfer, licensing and pledging.

In addition, the Ministry of Industry and Information Technology (MIIT) will guide innovation subjects to do a good job of laying out high-quality intellectual property portfolios, and carry out research on the rules of intellectual property protection in the field of cutting-edge technologies in the context of cross-field integration, among other things. The State Administration of Financial Supervision and Administration will continue to expand the pilot project of paperless handling of the whole process of pledge registration from the dimensions of provincial administrative regions and financial institutions, and revise and introduce relevant loan management measures to further improve the policy system of intellectual property pledge financing.

ZLWD Commentary：

The summary of the briefing highlighted the core features of the special action programme, emphasising the industrialisation of patents, integrated development and the establishment of regulatory mechanisms. This public outreach brings more attention and understanding to the policy setting, contributes to broader support and participation in the implementation process, and reflects recognition of the role of intellectual property in economic development and commitment to promoting development and innovation in patent-related fields in the coming years.

The unauthorized use of the "Anchor" registered trademark and the huge amount of illegal operation constitute the crime of counterfeiting the registered trademark

Fonterra Group and its wholly-owned subsidiaries enjoy the exclusive right to use the registered trademarks of "Fonterra" and "Anchor" in Class 29 (including milk, milk products, edible fats and oils, margarine, milk powder, yoghurt, jam, etc.). From December 2019 to October 2020, Defendant Wang Mouhao hired Wang Mouxin and others to use "Anchor" and "Fonterra" on the outer package of the butter, grated cheese and milk powder procured by himself in a warehouse located in a city outside China without the permission of the owner of the registered trademarks. "Fonterra" trademark on the outer package without the permission of the owner of the registered trademark, and put the instruction manual printed with the "Anka" trademark in some express parcels, pretending to be the products of "Anka" and "Fonterra" and passing them off through the Internet. On 28 October 2020, the public security organs seized 453 packages of labelled counterfeit "Anchor" butter, 658 packages of "Anchor" grated cheese, 653 packages of "Anchor" butter and 658 packages of "Anchor" grated cheese. On 28 October 2020, the public security organs seized 453 packets of labelled "Anchor" butter, 658 packets of "Anchor" cheese crumbles, and a large number of "Anchor" brand cards, information cards, packaging films, etc., with a total value of more than RMB 30,000 yuan. Defendants Wang Mouxin and Wang Mouhao were arrested by the public security authorities in March and July 2022, respectively.

The Shanghai Jinshan District People's Court (hereinafter referred to as the "Jinshan Court") held that the defendants, Wang Mouhao and Wang Mouxin, without the permission of the owner of the registered trade mark "Anchor", used the same trade mark as another person's registered trade mark on the same kind of goods, and the amount of illegal business was huge, and the circumstances were particularly serious. The amount of illegal business was huge and the circumstances were particularly serious, and their acts constituted the offence of counterfeiting registered trademarks. In the end, the Jinshan Court sentenced Wang Mouhao to four years and six months of fixed-term imprisonment and imposed a fine of RMB2,000,000 for the offence of counterfeiting a registered trademark, and sentenced Wang Mouxin to two years and six months of fixed-term imprisonment, three years of probation, and imposed a fine of RMB60,000 for the offence of counterfeiting a registered trademark, based on the circumstances of the offence, the position and role of the two defendants, the social hazards of the offence, and the attitude of repentance in pleading guilty to the offence.

ZLWD Commentary：

The case highlights the country's serious attitude towards trademark infringement and counterfeiting. The court's severe punishment of the criminals highlights the importance of protecting intellectual property rights and safeguarding the legitimate rights and interests of trademarks, which helps to maintain the market order and protect the rights and interests of consumers.

The CNIPA issued the Guidelines on the Judgment of the Object of Utility Model Patent Protection

The Judgment Guidelines standardizes the scope of utility model patent protection object from three aspects: product, shape and / or structure and technical scheme, and guides the innovation subject to accurately understand the boundary of utility model patent protection object. In terms of product judgment, taking the method as the subject name of the claim and the artificial layout planning are not the object of the protection of the utility model patent. In terms of shape and / or structure judgment, the biological or naturally formed shapes, the text symbols of the product surface are not the object of the utility model patent protection. In terms of the technical solution judgment, the product surface pattern without solving the technical problem and the improvement scheme of the product shape for the purpose of beauty are not the object of the utility model patent protection.

The Judgment Guidelines points out that the right holder should choose the right patent type to seek patent protection, such as applying for invention patents for technical schemes that essentially include methods and material improvement.

ZLWD Commentary：

The Judgement Guidelines provides a clear definition of the scope of protection for utility model patents, clarifying the circumstances in which protection is not applicable, such as method or aesthetic improvement. In addition, the Judgement Guidelines advise right holders to choose the appropriate type of patent according to the specific circumstances to better protect the innovation.

The CNIPA launched a special activity of "knowing and benefiting travel" for intellectual property financial services to help the new energy vehicle industry

The State Intellectual Property Office (SIPO) has recently issued a notice jointly with the Bank of China (BOC), requesting to carry out the special activity of "Knowing and Benefiting" of intellectual property financial service to help new energy automobile industry. The activity will insight and evaluate the industrial chain and supply chain through the perspective of patent chain, increase the implementation of policies and innovation of service mode, and promote "quick assessment, quick trial, quick registration and quick loan", further improve the effectiveness of intellectual property financial service, and help enhance the toughness and competitiveness of new energy automobile and other key industrial chain and supply chain.

The notice requires that in one year's time, local intellectual property management departments at all levels and branches of the Bank of China will organise more than 100 activities related to new energy vehicles, effectively use patent navigation tools, and emerge a number of innovative modes in the areas of industrial chain supply chain financing, risk assessment and collateral disposal, so as to give full play to the patent chain, and to provide financial services to small and medium-sized enterprises in the industrial chain. The patent chain will play a role in promoting the financing of science and technology-based small and medium-sized enterprises in the industry chain. During the activity period, no less than 1,000 key industrial chain owners and chain enterprises will benefit from intellectual property pledge financing.

The "Knowing and Benefiting" special activity will be carried out by organising special activities and providing diversified services, etc. The activity will focus on the key development of new energy automobile industry and the development of technology. Focusing on the focus of new energy automobile industry development and technological hotspots, fully using patent navigation tools, comprehensively analysing and researching the patent chain, innovation chain and talent chain, scientifically evaluating the technological autonomy and innovative growth of chain owners and enterprises in the chain, and deepening the intellectual property financing services for the industry chain by combining with the relevant demand research.

ZLWD Commentary：

The CNIPA and the Bank of China jointly launched a special activity of "Knowledge and benefit" to evaluate the new energy vehicle industry chain from the perspective of patent and help enhance its resilience and competitiveness. The event aims to strengthen intellectual property financial services and promote the integrated development of innovation chain and industrial chain.

Apostille Convention marks transformative step forward for foreign IP litigants in China

The Convention Abolishing the Requirement of Legalization for Foreign Public Documents, or the Apostille Convention, entered into force in China on Tuesday, which, according to Chinese diplomatic officials, will greatly reduce the time and economic cost of cross-border transfer of Chinese and foreign documents, and further optimize China's business environment.

On March 8, China acceded to the 1961 Hague Convention?Abolishing the Requirement of Legalization for Foreign Public Documents. On Tuesday, the Chinese Foreign Ministry held a ceremony to mark the implementation of the convention in China.

In the future, the cross-border circulation of documents between China and contracting states of the convention will no longer require the traditional "dual authentication" process. Instead, a new one-step certification model based on the Apostille certificate will be implemented under the framework of the convention.

On Tuesday, Director-General of the Department of Consular Affairs of the Foreign Ministry Wu Xi introduced that the convention will bring three major benefits. Firstly, it will greatly reduce the time required for international document processing. After joining the convention, the time needed to process a document can be reduced from approximately 20 working days to just a few working days, an average reduction of about 90 percent.

Secondly, it will significantly reduce the cost of document certification. Joining the convention will eliminate consular authentication fees and related intermediary service fees for Chinese and foreign individuals and businesses. It is estimated that joining the convention will directly save at least 300 million yuan ($41.18 million) in certification costs for Chinese and foreign individuals and businesses each year.

Thirdly, it will improve China's business environment. After joining the convention, companies from contracting states intending to invest in China or engage in exports will no longer need consular authentication for commercial documents. Additionally, over 70 percent of commercial documents involved in China's export trade will also benefit from this change.

Xiao Jianhua, a professor from the School of Law of Beihang University, told the Global Times on Tuesday that before joining the convention, public documents between China and other countries had to be notarized or authenticated by the embassy or consulates of the respective country in order for another country to recognize them.

After joining the convention, the mutual authentication procedures for civil and commercial documents such as marriage registration, corporate registration, and other public documents will be simplified, Xiao said.

In addition, in foreign-related judicial procedures, if the evidence submitted by the parties is a public document, there is no need to notarize it abroad or authenticate it at an embassy or consulate since it can be directly recognized by the court of the receiving country. This will greatly facilitate civil and commercial exchanges, business investments, and save more time in foreign-related judicial procedures, Xiao noted.

He Zhipeng, dean of the Law School and executive director of the Human Rights Center at Jilin University, told the Global Times that the convention can facilitate communication and enhance the efficiency of cross-border exchanges for the general public.

The Hague Convention is the most widely applicable and heavily subscribed international treaty under the framework of the Hague Conference on Private International Law. As of October 31, there are 125 contracting parties, accounting for three-fifths of the total number of countries and regions in the world. These include the European Union member states, the US, Japan, South Korea, Germany, Australia, Russia, and most of China's major trading partners and countries participating in the Belt and Road Initiative.

ZLWD Commentary：

The entry into force of the Apostille Convention marks the implementation of a new method of attestation in China. The Convention will make it possible to abolish the traditional "double authentication" procedure of "certification by the diplomatic service + certification by the embassy or consulate" between China and the signatory countries, and replace it with a new model of "one-step" authentication based on an additional certificate, which is more convenient. "This change is expected to significantly shorten the time required for Chinese and foreign documents to be certified. This change is expected to significantly shorten the time and cost required for the cross-border flow of Chinese and foreign documents, which will have a positive effect on the exchange of people and economic and trade cooperation between China and the signatory countries. This means that the procedure for the cross-border circulation of Chinese and foreign documents will be more efficient, saving time and economic costs.

The Pudong Court in Shanghai published the white paper and typical cases of judicial protection of IPR in the FTZ

On 10th November, Pudong Court held a press conference to release the status of judicial protection of intellectual property rights and typical cases of the 10th anniversary of the construction of the Shanghai Pilot Free Trade Zone, and to continue to deepen the practice of judicial protection of intellectual property rights in the Free Trade Zone.

Ten years accepted 52,354 cases, involving a wide variety of types of object litigation

From October 2013 to September 2023, the Pudong Court accepted 52,354 intellectual property cases involving the Shanghai Pilot Free Trade Zone and concluded 51,723 cases.

According to the white paper, in terms of the types of cases, there were 52,289 civil cases, 51 criminal cases and 14 administrative cases. These included 872 foreign-related cases involving 23 countries and regions such as the United States, Switzerland and France. Among the civil cases, disputes over copyright ownership and infringement accounted for the largest share of 82 per cent, followed by disputes over unfair competition, which accounted for 10 per cent.

In terms of subject matter, the number of cases involving larger amounts of money is increasing day by day. Among them, 6 cases were above 100 million yuan, and 112 cases were from 10 million yuan to 100 million yuan. Correspondingly, the highest amount of damages awarded was more than 20 million yuan. In terms of the type of object, the relevant cases cover both the traditional cultural and creative industries and trade areas, and also involve emerging cultural and creative and digital products such as animation, online games, script killings, escape rooms, and audiobooks.

White paper analysis, in recent years, with big data, cloud computing, artificial intelligence, network broadcasting and other new technologies, new forms of continuous breakthroughs, Shanghai Pilot Free Trade Zone, the innovation and creativity of market players significantly enhanced, with the emergence of a large number of new types of intellectual property rights disputes, and increasingly presenting the increase in the digital industry cases, the difficulty of competition disputes, cultural and creative object involved in a wide range of characteristics. At the same time, the Pudong Court has continuously increased the reform and innovation of the trial mechanism in the field of intellectual property rights, deepened the construction of trial capacity, and improved the professionalism of the trial of cases.

Aiming at the new needs of judicial protection, polishing the golden name card of mechanism innovation

Over the past ten years, Pudong Court has given full play to the function of intellectual property adjudication, continuously increased the intensity of judicial protection of intellectual property, actively explored replicable and extendable intellectual property adjudication mechanism, and endeavoured to form a series of service guaranteeing the construction and development of the Shanghai Pilot Free Trade Zone and its working mechanism and experience practices.

On the one hand, innovation and improvement of the trial mechanism, enhance the judicial protection of synergy. In-depth promotion of the "three-in-one" trial mechanism for criminal, civil and administrative intellectual property cases has been carried out on the principle of being most conducive to the high-quality development of the economy and society, safeguarding the legitimate rights and interests of the parties concerned, and dealing with the cases in a fair and efficient manner. It has further intensified the crackdown on infringement and counterfeiting, and continuously improved the mechanism for linking administrative protection of intellectual property rights with judicial protection.

On the other hand, it has implemented the infringement compensation mechanism and endeavoured to enhance the judicial effect. Implementing a stronger punitive damages mechanism for intellectual property infringement, actively promoting and participating in the formulation of regulations in Pudong New Area and providing legislative advice. The court further clarified the conditions for the application of punitive damages in the trial of cases, and effectively brought into play the deterrent effect of punitive damages.

The Pudong Court has also continued its efforts in implementing the high-quality goods strategy, standardising the review of injunctions, promoting collaborative governance, establishing cross-domain collaboration and strengthening publicity and guidance, and has continued to deepen the governance of the source of the litigation and promote the front-end resolution and substantive resolution of intellectual property disputes involving the Shanghai Pilot Free Trade Zone. Since 2020, the Pudong Court has actively docked with the World Intellectual Property Organisation's Shanghai Centre for Mediation to carry out mediation work in foreign-related intellectual property cases, and issued ten initiatives to serve the high-level reform and opening-up of Pudong New Area, docking with the international high-standard economic and trade rules, and providing services to guarantee the implementation of the enhancement strategy of the FTZ.

ZLWD Commentary：

The Pudong Court released a white paper describing the intellectual property cases it has handled over the past ten years, covering a wide range of areas including copyright and infringement disputes. In response to the challenges of emerging technologies, the court has strengthened its reform of the trial mechanism and implemented a tougher infringement compensation system. Continuous efforts have been made to promote boutique case adjudication strategies, and to actively participate in the reform of the Free Trade Zone to serve a high level of opening up. These initiatives aim to safeguard judicial justice and promote the economic development of the FTZ.

A programmer was sentenced for leaking the company's source code of a game 

Recently, Beijing Haidian District People's Court announced a case in which a programmer of a game company was sentenced to two years' imprisonment for disclosing the source code of a game to others in violation of a confidentiality agreement.

[Case Review]

In 2020, Ling served as a company's senior development manager, in violation of the confidentiality contract signed with the company, the company will be a network game software source code sent to Zhao through QQ mailbox. Zhao compiled the source code of the above illegally acquired game software into another game server terminal programme, and together with his friend Wang rented a foreign server to run the game, and set up a private service to make more than 1.1 million yuan in illegal business profits.

In January 2022, the public security authorities arrested Wang, and led by Wang went to Zhao residence, the same day Zhao arrested; in February of the same year, the public security authorities will Ling captured and returned to the case. After the crime, Wang has compensated the victim company 500,000 yuan.

The Public Prosecution held that Ling's behaviour violated the provisions of Article 219(1)(c), (3) and (4) of the Criminal Law, which constituted the crime of infringing on commercial secrets; and that Zhao's and Wang's behaviour violated the provisions of Article 217(1) of the Criminal Law, which constituted the crime of infringing on copyright, and requested the court to punish them according to the law.

[Trial process]

In the trial, Ling, Zhao, Wang to the procuratorate charges of the facts and crimes have not objected. Ling's defence argued that Ling's subjective malignancy is relatively small, and is a first-time offender, occasional offender, pleaded guilty with a good attitude, and hoped that the court would impose a lighter penalty on him. Zhao's defence argued that Zhao played a lesser role in the joint crime, lesser share of the stolen money, should be considered as an accessory. Wang's defence argued that Wang pleaded guilty with a good attitude, had meritorious performance, and actively returned the stolen goods, and asked the court to reduce his punishment.

After identification, the code file of the game programme compiled by Zhao is consistent with the content of the code file of the game programme legally owned and operated by Ling's company.

The court held that, in order to obtain the game engine code in the hands of others, Ling, in violation of the requirements of the right holder regarding the preservation of commercial secrets, used the computer source code programme of his company in his possession for the exchange, which caused significant losses to the right holder, and his behaviour constituted the crime of infringing on commercial secrets, and should be punished. Zhao and Wang, for the purpose of profit, without the permission of the computer software copyright holder, copied its computer software and ran it on the server set up privately, obtaining huge profits, and the circumstances are particularly serious, and their behaviour has constituted the crime of infringing on copyright, and shall be punished.

Zhao not only conspired with Wang to commit the crime, but also his act of compiling into a pirated software program provided the basis and prerequisites for operating the private game website, and his status and role in the joint crime were important, so it was inappropriate to identify him as an accessory. In view of the fact that Wang assisted the public security authorities in apprehending the co-accused after his arrival at the case, and had meritorious performance, and actively compensated the victim unit for 500,000 yuan of economic losses with the cooperation of his family members, and gained the understanding of the victim unit, the court adopted the relevant defence opinions of his defenders at its discretion.

[Trial results]

In the end, the court ruled that Ling was guilty of infringing on trade secrets and sentenced to two years' imprisonment and a fine of 200,000 yuan; Zhao was guilty of infringing on copyright and sentenced to five years and six months' imprisonment and a fine of 800,000 yuan; Wang was guilty of infringing on copyright and sentenced to three years' imprisonment and a fine of 200,000 yuan.

ZLWD Commentary：

This case highlights the urgency of protecting intellectual property rights, especially as leaks involving source codes and game servers have become the latest trend in infringement and defence of rights. This judgement fully demonstrates the importance that the judiciary attaches to the protection of relevant intellectual property rights and sends a clear signal to the community to safeguard the rights and interests of innovation and intellectual property.

China National Intellectual Property Administration has Issues the Guidelines on Application for International Registration of Designs.

With the entry into force of the Hague Agreement Concerning the International Registration of Industrial Designs (1999 version) in China on 5 May 2022, filing an application for international registration of a design through the Hague system has become a simple and efficient way to obtain design protection. The Guidelines on Application for International Registration of Designs will help innovative entities to use the Hague system efficiently and reasonably to carry out global product layout and promote the enhancement of industrial design innovation capacity.

In order to deeply implement the tasks and deployments of the "14th Five-Year Plan for the Protection and Application of National Intellectual Property Rights", strengthen the protection of intellectual property rights at source, reinforce the supervision of the quality of intellectual property rights application and registration, help innovation subjects to efficiently and reasonably use the Hague system to carry out the layout of global products, and promote the upgrading of the innovation capacity of designs, China National Intellectual Property Administration has prepared the Guidelines on Application for International Registration of Designs.

The Guidelines on the Application for International Registration of Designs include five parts, overview of the application for international registration of a design, matters to be noted in the examination procedure before the International Bureau, matters to be noted in the examination procedure before CNIPA, fees for the application for international registration of a design and other matters. The Guidelines give a detailed introduction to the procedure for the filing of an application for international registration of a design under the Hague Agreement, matters to be noted in the examination procedure, fees and so on.

ZLWD Commentary：

The Special Action Plan for Patent Transformation and Application (2023-2025) puts forward action arrangements for patent transformation and application in the next two to three years, and puts forward specific requirements and task objectives for realizing the transformation of patent innovation achievements into real productive forces.

State Council Executive Meeting Considers and Adopts Rules for the Implementation of the Patent Law of the People's Republic of China (Draft Amendment)

On 3 November 2023, the executive meeting of the State Council considered and adopted the Rules for the Implementation of the Patent Law of the People's Republic of China (Draft Amendment). During the meeting, the government emphasised the need to thoroughly implement the decision-making and deployment of the CPC Central Committee on strengthening the protection of intellectual property rights, to strictly implement the Implementing Rules of the Patent Law, to further improve the patent application and examination system, to enhance the level of China's patent creation, application, protection, management and services, to strengthen the convergence with the relevant international treaties, and to strive to bring into full play the important role of the Patent Law in the promotion of scientific and technological innovation and the development of new industries. It is necessary to carry out various forms of publicity activities on intellectual property law and vigorously establish rule of law in order to safeguards and supports innovation.

ZLWD Commentary：

The Implementing Rules of the Patent Law, as an important supporting administrative regulation to guarantee the effective implementation of the newly amended Patent Law and ensure the smooth implementation of the new systems, are of great significance in further improving the level of rule of law in intellectual property work, and are conducive to further playing an important role in promoting scientific and technological innovation and the development of new industries under the Patent Law.