The UK Supreme Court ruled that the employer cannot held liable for an intentional data leaking by its employee

On April 1, 2020, the UK Supreme Court ruled that the famous superstore, Morrisons was not “vicariously liable” for the leak actions of Andrew Skelton, who intentionally disclosed staff information. Skelton was the internal audit staff at the Morrisons, and was in charge of sending the staff information, including payroll data, to external audit institutions. However, Skelton posted those data online for personal reasons, which led to the leak of staff’s personal information. The group of 5500 staff filed lawsuit against the Morrisons after the incident happened. Morrisions lost in the judgment given by the High Court and the Court of Appeal.

The judge held that Skelton’s actions were not “closely connected” with his duties at work, and whether the employer shall be vicariously liable for its employee’s illegal actions is depending on whether the employee acts for himself or for the employer. If the employee was pursuing a personal vendetta, the employer shall not take vicarious liability.

Judgement: https://www.supremecourt.uk/cases/docs/uksc-2018-0213-judgment.pdf

ZLWD Commentary：

The ruling has brought some impact to the EU, especially was appraised by corporations. The judgment clarified the extent to which an employer can be held liable if an employee commits a criminal act at work. If the employee's illegal behavior is not closely related to his duties at work, the employer shall not be vicarious liable. The UK Supreme Court set a strict scope for "close relationship". Skelton’s duties actually contain "personal data collection", "save of payroll data", "send payroll data to external institutions", and he intentionally leaked the date when he sent the data out. In this case, the employer still cannot be held liable. This is a landmark case for the corporations inside the EU regarding their data protection duty.

Irish High Court ruled that use of CCTV footage in disciplinary proceedings breached employee’s data protection rights

On February 1, 2020, the Irish High Court held in Doolin v the Irish Data Protection Commission (DPC) that the DPC’s conclusion towards the Mr. Doolin’s complaint against Our Lady’s Hospice and Care Services (OLHCS) on infringement of personal data has no legal basis. The case involved an investigation by OLHCS into a threatening and offensive graffiti message discovered in a staff room on their Hospice campus. The graffiti was reported to police, who advised OLHCS to review their CCTV footage to determine who might have been responsible for the vandalism. Mr Doolin was discovered to be the person in the footage and given a minor sanction.

Mr Doolin’s claimed that the CCTV footage had originally been viewed for a permissible use in line with OLHCS policy i.e. prevention of crime and public safety, and OLHCS had exceeded its lawful purpose in collecting the CCTV footage and failed to notify people who may be recorded by the CCTV. Hence, Mr. Doolin made a complaint to the DPC, which concluded that the use of information gathered from viewing the footage during the disciplinary process did not constitute an infringement of personal data. Mr. Doolin then sued DPC for violation of Data Protection Act.

The judge noted that both the sign beside the CCTV cameras and OLHCS’s CCTV policy stated that the images were being recorded for the purposes of health, safety, and crime prevention. The CCTV policy was later amended after the graffiti incident to also cover use of the footage for disciplinary purposes, but it was beyond the scope of the use of surveillance video at the time of the incident. If the Court supports this kind of practice, there will be very disadvantageous influence on personal data protection rights and serious consequences in the future. 

Judgement: https://www.supremecourt.uk/cases/docs/uksc-2018-0213-judgment.pdf

ZLWD Commentary:

This case has clearly demonstrated how the courts in the EU tend to react towards personal data protection, and highlights the importance of having clear policies and procedures in place for processing personal data relating to employees, particularly in relation to CCTV footage. Employers must carefully consider the purposes for which it is collecting personal data, and ensure these purposes are clearly set out in the companies’ data protection documentations, notices and policies. Employers also have to communicate with employees whose personal data are collected regarding the purpose of collecting data. Once the CCTV footage proved to be used for the purpose that was not mentioned before, the employers could violate the personal data protection law.

Jade Dynasty (诛仙）Gamer was Sentenced for Fourt Years and Fined RMB 10m for Setting up Private Game Sever

Recently, People’s Court of High and New Technology Industry Development Zone in Chengdu, Sichuan (“the Court”) trialed a criminal case on setting up private game server that infringed copyrights of famous online games Jade Dynasty and Xiaoao Jianghu Online, via remote video. Three defendants were found guilty for copyrights infringement. The defendant Liu was sentenced for 4 years and fined RMB 10 million. The accessory Tang was sentenced for 2 years and 6 months and was fined RMB 1.3 million. The accessory Qin was sentenced for 2 years and 4 months and was fined RMB 1.4 million. All the illegal gains shall be confiscated in accordance with the law. It is reported that this is the first case where the Sichuan court has decided the fine for more than RMB 10 million yuan for copyright infringement case.

The Court held that the two accused games are essentially similar to Jade Dynasty and Xiaoao Jianghu Online in terms of the program structure of the client. Also, the login interface projected through running client program sever, the operation mode in selection interface, and running content are consistent with Jade Dynasty and Xiaoao Jianghu Online. From the relationship between the client and sever program, it is determined that server program and client program used by the three defendants are right holders’ computer software works that enjoy copyright. The three defendants committed copyright infringement by setting up private sever. Hence the Court made the aforementioned judgment. The defendants appealed.

Source: China Intellectual Property News

Reporter: FENG Fei    Date: April 3, 2020

ZLWD Commentary:

Client and server are important parts of online games, both of which linked with each other to form a complete online game. The two parts belong to computer software works that regulated in copyright law. Setting up private servers means that privately use client program to build online game sever and operate with other people’s online game works without the permission of the copyright owner. Private sever is quite common among online gamers, as it offers more freedom and lower costs i.e. gamers can get better gaming experience through very low cost. Many people who set up private sever are loyal online gamers themselves. First they just set it for their own convenience, then they make profit out of it after more gamers start using it. However whether making profit from private sever does not change the fact of infringement. Infringer will face serious criminal punishment. There are certain factors to determine sentences and fines: nature of the crime, degree of harm to society, the amount of illegal gains, illegal business scale, and the victim's damages, etc.

iQiyi Sued Quantudou for Infringement of Interne

Shanghai Intellectual Property Court gave final judgment on the case between Beijing iQIYI Technology Co., Ltd. (“iQIYI”) and Shanghai Quantudou Culture Communication Co., Ltd. |(“Quantudou”), rejected the appeal and upheld the judgment given in the first instance.

The court in the first instance concluded that the focus of dispute includes whether iQIYI enjoys the right to broadcasting information through network regarding the show involved in the case, and whether Quantudou has infringed the copyrights therefore shall take civil liability. The court held that Quantudou to pay RMB 250 thousand to iQIYI for economic loss and other reasonable expenses.

Both parties were not satisfied by the judgment and appealed to Shanghai Intellectual Property Court. iQIYI claimed in the appeal that the awarded damages were apparently too less and requested to overrule the judgment. Quantudou, on the other hand, claimed that iQIYI failed to prove it has obtained authorisation of the work “Kunlunjue”’s original copyrighter, and that “Kunlunjue” shall not be regarded as work defined in the copyright law. Quantuduo requested to reject iQIYI’’s claims in the first instance.

Source: China Intellectual Property News    Date: April 9, 2020

ZLWD Commentary:

Online video platforms in China has gradually strengthened their copyright awareness. Many mainstream platforms has paid a fortune on buying copyrights. There are lots of shows invested by platforms themselves which they enjoy copyrights of those shows on their own. Under such background, the infringement lawsuits caused by competitors stealing broadcast has increased more than ever. The copyright ownership of such cases is generally not controversial, but it has always been difficult to identify and prove the actual loss. In this case, "Kunlunjue" is a fighting show with relatively less audience, which is one of the reasons why the court only supported the plaintiff RMB 250 thousand. Although iQIYI claimed the court in first instance ordered very low compensation, the court upheld the first judgment after looking into factors like iQIYI failed to prove the actual loss it suffered, or the actual profit Quantudou has gained through infringement. Also, the court has to consider popularity of the show, difficulty of creation, Quantudou’s infringement facts etc. Generally speaking, the infringing liability and compensation are related to the subjective malicious degree of the infringer, the value of the copyright itself, the price of obtaining authorisation, the possible commercial interests and losses etc. Those factors are indeed hard to prove in practice, which is one of the reasons compensation liability is limited in judicial practice.

Result Came Out for the Dispute between “Septwolves” (七匹狼）and “Wolf Story”（饿狼传说）

The dispute over revocation of “Fatal Fury” trademark rights has come to the end after 7 years. According to the final judgment given by Beijing High Court, after verifying and examining evidence of dispute trademark, the court ruled that No.5156694 trademark "WOLF STORY and figures" (“dispute trademark”) owned by Cantou Chuyu Cosmetics Co., Ltd. (“Chuyu”) was not used in a authentic and valid way on designated products between July 13, 2009 and July 12, 2012, (“the period of time”).

From 2011 to 2017, Chuyu applied for trademark registration containing the words "Wolf Story” on class 3, 24 and 25 goods, according to China trademark website.

On July 13, 2012, Fujian Septwolves Industry Co., Ltd. (“Septwolves”) filed with an application for revocation on the grounds that the dispute trademark was not used for three consecutive years, to the trademark office of the former State Administration for Industry and Commerce. Beijing intellectual property court concluded that evidence submitted by Chuyu proved the dispute trademark has been commercially advertised during the period of time. Although the date on advertising invoice is not within the period of time, the advertising period stated in advertising contract covers the period of time. Chuyu’s evidence proved it has really used dispute trademark in cosmetics products. However, Chuyu failed to prove it has used dispute trademark in other designated products. Therefore the court in first instance set aside the decision made by the trademark office and ordered the office to re-decide the case. Septwolves appealed to the Beijing High Court and claimed that Chuyu failed to prove it used dispute trademarks among cosmetic products like shampoo and the dispute trademark shall be revoked for all designated products. The Beijing High Court held that even though Chuyu has provided original documents, it can only prove Chuyu has been maintaining the validity of the dispute trademark, instead real usage defined in Trademark Law. The court in first instance has made mistakes in facts, however such mistakes do not affect the decision.

Source: China Intellectual Property News

Date: April 8, 2020

ZLWD Commentary:

The main function of trademark is to identify the origins of products and their economic value. If the registered trademark is unused for a long time, it not only fails to create economic value, but also cuts off the connection between the trademark and the commodity. Because of the exclusiveness of the registered trademark, the unused trademark will lead to the waste of the trademark resources and the waste of the administrative resources of the trademark administration authorities. Therefore, the second paragraph of article 49 of the trademark law provides that where a registered trademark becomes a generic name of the commodities for which it is approved or a registered trademark has not been used for three years consecutively without a proper reason, any organisation or individual may apply to the trademark bureau for revocation of the said registered trademark. In this case, the court held that "symbolic" usage is not valid according to trademark law, which is of great significance to promote the rational use of trademarks.

China Becomes Top Filer of International Patents in 2019  for WIPO’s PCT System

In a press release taken place on April 7, 2020 at Geneva, Switzerland, World Intellectual Property Organisation (WIPO) announced statistics for applications of patent, trademark and industrial design. With 58,990 applications filed in 2019 via WIPO’s Patent Cooperation Treaty (PCT) System, China ended the U.S. (57,840 applications in 2019) reign as the biggest user of the PCT System.

“China’s rapid growth to become the top filer of international patent applications via WIPO underlines a long-term shift in the locus of innovation towards the East, with Asia-based applicants now accounting for more than half of all PCT applications,” said WIPO Director General Francis Gurry.

International patent applications filed via the PCT grew by 5.2% (265,800 applications) in 2019, while international trademark applications via the Madrid System for the International Registration of Marks increased by 5.7% (64,400 applications). Protection for industrial designs via the Hague System for the International Registration of Industrial Designs saw a 10.4% growth (21,807 designs).

In 2019, the top five users of the PCT were: China (58,990 PCT applications), the U.S (57,840), Japan (52,660), Germany (19,353) and the Republic of Korea (19,085). U.S.-based applicants (10,087) filed the largest number of international trademark applications using WIPO’s Madrid System in 2019, followed by those located in Germany (7,700), China (6,339), France (4,437) and Switzerland (3,729). For Hague System, Germany, with 4,487 designs, continued to be the largest user of the international design system. The Republic of Korea (2,736 designs) surpassed Switzerland (2,178) to become the second largest users of the Hague System in 2019. Italy and the Netherlands ranked fourth and fifth, respectively, with 1,994 and 1,376 designs. 

Statistics shows that Chinese enterprises and educational institutions has taken few places in top 10 list. China-based telecoms giant Huawei Technologies, with 4,411 published PCT applications, was the top corporate filer in 2019. It was followed by: Mitsubishi Electric Corp. of Japan (2,661); Samsung Electronics of the Republic of Korea (2,334); Qualcomm Inc. of the U.S. (2,127); and Guang Dong Oppo Mobile Telecommunications of China (1,927). The top 10 applicant list comprises four companies from China, two from the Republic of Korea, and one each from Germany, Japan, Sweden and the U.S.. Among educational institutions, the University of California maintained its top rank with 470 published applications in 2019. Tsinghua University (265) ranked second, followed by Shenzhen University (247), Massachusetts Institute of Technology (230) and South China University of Technology (164) (Annex 3) PDF, Annex 3. The top 10-university list comprises five universities from the U.S., four from China and one from the Republic of Korea.

Source: China Intellectual Property News

Date: April 7, 2020

ZLWD Commentary：

Though becoming top filer is a good sign, we shall not neglect other factors like quality and value of the patents, as well as the amount of applications per capital. The globalisation of Chinese products and technologies is inseparable from the protection of the world's intellectual property system, which is a mutual protection and also mutually beneficial to each other. The increasing number of China’s PCT international patent applications indicates that more and more Chinese enterprises has achieved outstanding accomplishment in the international market. It also shows that China's intellectual property awareness and management level has been improving, which will help to enhance the competitiveness and influence of Chinese enterprises within the world.

Sichuan Mingshan is Focusing on Protecting the Tea Brand “Mengding Mountain Tea”

It is the season for spring tea recently. Sichuan Ya’an Administration for Market Regulation Bureau has been implementing “Chunlei Action 2020” and prevention of the outbreak “two hands grab, two not delay and two promote”, in order to focus on inspection of authorised geographical indication trademark users regarding Mending Mountain Tea and enterprises of other tea brand. 

Minshang District Administration of Market Regulation Bureau (“the Bureau”) has been visiting each enterprise that is authorised to use “Mengding Mountain Tea” geographical indication trademark. The Bureau has been actively guiding and promoting the protection of the “Mengding Mountain Tea”, with guiding on site for more than 60 times and handed out 120 leaflets, The Bureau has created WeChat group chat to give real time support. After visitations, the Bureau urged seven enterprises to apply for the extension of license for "Mengding Mountain Tea" geographical indication trademark certification; checked more than 210 trademarks and 1450 brand packaging. The Bureau requested those packages that do not conform the requirements of the relevant laws, or suspected of counterfeiting trademarks, and other fake brands to correct their wrongful behavior. For those enterprises that used questionable tag names, carried standards, manufacturers and marketing materials, the Bureau has conducted a thorough inspection on them and requested over 40 enterprises to rectify such irregular behaviors.

The Bureau has dealt with 4 cases that infringed “Mengding Mountain Tea” geographical indication trademark. The 4 companies such as Jinxiu, Yafeng used and printed the said trademark without being authorised for the sale of the tea, were investigated and punished for their illegal acts. The Bureau confiscated 2718 editions fake labels, with a total of 15057 tags, 10 kinds of packages, with a total of more than 1000 boxes. The Bureau will continue focusing on rectification of the packaging disorder of "Mengding Mountain Tea", and will severely punish a number of illegal acts, regulate market entities, and effectively maintain a satisfactory market order.

 Source: China Intellectual Property New

ZLWD Commentary:

On April 3, 2020, the National Intellectual Property Administration issued the “Administrative Measures for the Use of Special Signs of Geographical Indications (for Trial Implementation)". The measures were formulated for the purpose of strengthening the protection of geographical indications of China and unifying and regulating the use of special signs of geographical indications. The Measures also made the Bureau has a legal basis to conduct guidance, inspection and rectification for enterprises using “Mengding Mountain Tea” geographical indication trademark and other tea brands, which further protect the trademark value of geographical indications and contribute to the healthy and orderly development of the local economy.

Discover the Best Treatment Medicine for COVID-19

China's economy and social life were back on track after Wuhan lifted control measures on the lockdown. The current situations like China has few new confirmed cases, the resumption of work and production has been undergoing, are not come easily. When there were no confirmed treatment for researchers in China at early stage, they have selected Chinese traditional medicine "three medicines three prescriptions" guided by the demands of treatment, as well as other medicines that have curative effects. The researchers continuously improve the treatment. Many pharmaceutical companies resumed production early to provide medicines for the COVID-19. The rate of cure rate increased from 14% to 93%. The researchers form an essential part of China’s anti-epidemic campaign.

In order to assist the scientific research of COVID-19 prevention and control, the National Intellectual Property Administration organised experts to conduct a comprehensive analysis of relevant patent information, and successively produced reports such as "Preventing COVID-19 Patent Information Research Report", "COVID-19 Patent Information Research Report of Using Traditional Chinese Medicine for Prevention and Control" etc., which gave directions and suggestions from the perspective of patents area for scientific researchers. A number of intellectual property service agencies took the initiative to open patent databases to facilitate research, and carry out related consultation for researchers for free.

Source: National Intellectual Property Administration

Date: April 8, 2020

ZLWD Commentar:

The pandemic is increasingly severe. Believing in medicine and science is the best or even the only way to control the COVID-19. Nonetheless how to provide support for the COVID-19 related medicine/scientific results in a legal way, is the main mission of the judicial system. Whether legal systems around the world can all work together regarding the current special circumstances, can also be a question to be answered. The report issued by the National Intellectual Property Administration reflects the support of anti-epidemic from different authorities, which guides and protects the wisdom of the relevant practitioners, and embodies the spirit of the people to control and prevent the COVID-19.

China and Korea are Working Together to Cope with COVID-19 Pandemic, Strengthening the Cooperation on Patent Information Services

On April 9, Shen Changyu, director of the National Intellectual Property Administration of China, and Park Won-joo, director of the Korea Intellectual Property Office, held a video conference to exchange views on the patent information service during the COVID-19 outbreak, the postponement of meetings among five state intellectual property offices, the deepening of bilateral cooperation, as well as topics of common interest.

Shen said that the current COVID-19 pandemic is spreading around the world and the controlling the outbreak is currently at stake; this conference between the two countries shows the wishes of the two countries to strengthen cooperation in the field of intellectual property. He also said the two countries shall strengthen the cooperation in the field of patent information and make more contributions to the control and prevent COVID-19.

To support the epidemic researches and resumption of production for enterprises, National Intellectual Property Administration organised experts to produce reports on chemical medicine, Chinese traditional medicine, biological medicine, vaccine, detection methods, testing instrument and surgical masks and other key areas, in order to develop online patent information sharing platform.

Park mentioned that since the outbreak of COVID-19, China and Korea have maintained close cooperation and provided each other with surgical masks, medicines and other medical supplies to undergo the difficulties together. The KIPO recently opened a navigation website for COVID-19 patent information to provide users with the latest inventions and potential treatments for COVID-19, effectively helping countries to prevent and control the epidemic. It is hoped that the two countries can carry out closer cooperation in terms of patent information sharing and other aspects, so as to provide strong support for prevention of the COVID-19.

Source: China News Online

Date: April 9, 2020

ZLWD Commentary:

The pandemic has spread around the world. China and Korea, which are geographically close to each other, have worked together to respond such difficulties. The two countries help each other in terms of medical supplies for prevention of epidemic, and also have close communication and cooperation on patent information protection related to the epidemic. As we all know that cooperation is the only right path for the future’s development. China is also working with the rest of the world, sharing the latest achievements of medical and epidemic prevention measures timely, which has shown that China‘s mission on creating a community of shared future for mankind.

“New Balance” was Awarded RMB 10.8 million in the First Instance

On April 16, 2020, Shanghai Pudong People’s Court (the “Court”) has ruled in the first instance on the unfair competition case: New Barlun has to pay RMB 10 million for compensation of economic loss and RMB 80 thousand for reasonable expenses of rights protection.

The Court held that New Barlun was found guilty of unfairly using an “N” symbol that closely resembles New Balance’s signature logo, which would mislead customers. The two logos has same visual effect when the customer usually do not pay attention to some micro differences.

The Court also said that New Barlun is aware of New Balance as its competitor, and still use similar logo on the same class of products, meaning that New Barlun has been deliberately using New Balance’s reputation to confuse consumers, which is against good faith and business moral, therefore its behaviour constitutes unfair competition.

In addition to the cessation of unfair competition and elimination of the impact, New Barlun shall also be liable for compensation. The plaintiff's actual loss and New Barlun’s actual profit are unsure, however evidences proves that the plaintiff's loss should above the legal limit of compensation for RMB 5 million. The Court considered that the unfair competition has been lasting for a very long time and the defendant’s subjective malicious is rather obvious. Hence the Court supported RMB 10 million for compensation of economic loss and RMB 80 thousand for reasonable expenses of rights protection.

Source: China News Online

Date: April 17, 2020

ZLWD Commentary：

“Reputable decoration of products” has been protected in the PRC Anti Unfair Competition Law, which is separated from trademark registration rights. Relative judicial explanation confirmed that the trademark registered first enjoys the rights to trademarks and its own specific decoration. “Reputable decoration of products” is different from trademark rights in terms of formation, timing, rights holder and scale of protection etc. Article 6 of the PRC Anti Unfair Competition Law provided that business operators shall not commit the following acts to mislead others to misidentify their goods as others' goods or to associate their goods with others: (1) unauthorised use of labels which are identical or similar to the description, packaging, decoration etc of other's goods that are influential...” Whether the infringement involved is registered trademark does not necessarily constitute the defense reason of an unfair competition case, as long as the defendant's use of the logo is identically similar to the logo registered first.

The defendant in this case, as a practitioner in the same industry, knowingly used the similar logo to confuse consumers, which is against good faith and business moral, therefore its behaviour constitutes unfair competition.

It is worth to mention that the defendant's subjective malice is quite obvious, and the business scale is large, hence the adverse effect to the society could be far-reaching. Thus the Court applied the punitive damages in this case, and ordered the defendant to compensate the plaintiff for the economic loss of RMB 10 million, which exceeded the legal limit of RMB 5 million.

Featured Cases

German Electrical Appliance Brand Severin, Represented by Zhonglun W&D, Won the Case over Rights to Patent Application

P.C.WOO Zhonglun W.D. LLP’s partner Zhou Lisi and his team, associate Wu Ziling and trainee Ouyang Jun, represented the case for the dispute of right to patent application right between Severin and Zhang. Severin is a famous German electric appliance brand. The Supreme People's Court made the final judgment in April 2020, and ruled that Severin is entitled to the right to PCT patent application. The case lasts three years, and the courts in the first and second instance have both found in favour of the plaintiff, represented by Zhonglun W&D.

Case Comment:    

This case is a typical dispute over right to patent application. However it was not easy to get the courts’ support. The former employee was found to have applied for the PCT international patent during his employment. The main issue of the case is whether the content of the PCT international patent is related to the company's main business scope, and whether the employee uses the company's material and technical resources to form the patent. In addition, the patent in this case is the PCT international patent of PCT without basic patent, hence it is difficult to execute the judgment in the future.

Zhonglun W&D’s associate Chen Lutang Represented Client to Win the Administrative Dispute over Invalid Invention Patent

On December 28, 2018, Zhonglun W&D’s partner Chen Lutang represented his client Shenyang Xinzhiyuan, for the dispute against Bayer and National Reexamination and Invalidation Department of the Patent Commission (“the Commission”). and won in the second instance..

On June 23, 2014, Bayer filed a civil litigation against Xinzhiyuan and its franchisers with the Beijing Third People’s Intermediate Court (“the Court”) over a dispute over patent infringement of inventions.

On October 16, 2014, Xinzhiyuan filed an application to the Commission for invalidating the invention patent for "encoding and testing of syringe information" involved in the case ("involved patent").

On September 7, 2015, the Commission issued a decision letter No. 26992 of reexamination, declaring that involved patent was invalid.

In December 2015, Xinzhiyuan refused to accept the written decision and filed a lawsuit with Beijing Intellectual Property Court against the Commission and Bayer as the third party, requesting to revoke the decision letter No. 26992 of reexamination in accordance with the law and to amend the judgment related to involved patent to be invalid.

On January 20, 2016, the Court gave judgment in the first instance on the patent infringement of invention, found in favour of Bayer. However Xinzhiyuan already filed administrative litigation, which was already in progress, the civil litigation suspended pursuant to the law.

[First instance of the Beijing Intellectual Property Court]

On November 22, 2016, the Beijing Intellectual Property Court issued Administrative Judgment (2015) Beijing Zhixing Chuzi No. 6511 on the case of administrative dispute over invalid invention patent, and issued an order to revoke the decision letter No. 26992 of reexamination. At the same time, the Commission is required to review the invalidation request of this patent made by Xinzhiyuan.

On December 21, 2016, Bayer appealed and requested to revoke Administrative Judgment (2015) Beijing Zhixing Chuzi No. 6511.

[Second instance of the Beijing High People’s Court]

On July 4, 2017, Beijing High People’s Court issued (2017) Administrative Judgment Jing Xingzhong No.893, which revoked the Administrative Judgment (2015) Beijing Zhixing Chuzi No. 6511, and refused Xinzhiyuan’s requests. Xinzhiyuan lost in the second instance.

On September 22, 2017, Xinzhiyuan appealed the Supreme People’s Court for a retrial, requesting to revoke the judgment of the second instance and uphold  the judgment of the first instance.

[The Supreme People’s Court ordered a retrial]

On December 25, 2017, the Supreme People’s Court issued (2017) Administrative Order Zuigaofa Xingshen No.7230, ordering the Beijing High People’s Court to retry the case.[Retrial of Beijing High People’s Court]

On December 28, 2018, Beijing High People’s Court issued (2018) Administrative Judgment Jingxing Zai No.11, which ordered that the judgment of the second instance shall be revoked and the judgment of the first instance shall be upheld.

Case Comment：

The product covered by this patent is the high-pressure syringe used in CT in the medical field, which is a medium for medical products. The involved products produced by Bayer and Xinzhiyuan. There was a huge difference in prices between those produced by Bayer and those produced in China. However the two products have the same effect and the use of domestic syringe can significantly reduce the cost for CT.

Therefore, after Xinzhiyuan winning the case, the Commission shall review the invalidation of the patent and make a decision. If the Commission decides that the patent is invalid, large medical suppliers in China can continue producing the said products, which will have positive impact to the healthcare industry.

This Newsletter is produced by Economic and Legal Development Research Centre for Guangdong-Hong Kong-Macao Greater Bay Area 

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Yu DENG, Yuming LI, Shell WU, Oyagi, Gong CHEN, Ning NING

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