『Policy&Legislation』政策法规

1.       Voice from the Two Sessions: The IP Issues in SPC and SPP Report

两会快讯：最高人民法院及最高人民检察院工作报告中的知识产权问题

Recently, the 3rd plenary meeting of the 5th session of the 12th National People’s Congress has been held at the Great Hall of the People, at which the report on the work of the Supreme People’s Court and the report on the work of the Supreme People’s Procuratorate were heard and deliberated.

Mr Zhou Qiang, President of the Supreme People’s Court, noted in his report that the Supreme People’s Court improved intellectual property rights (IPRs) protection rules in 2016 by making judicial interpretations on the trials of cases involving disputes over patent rights and cases of other types, aiming to promoting innovation-driven development. China tried a series of cases involving the dispute over the trademark “乔丹” (Chinese equivalent of “Jordan”), demonstrating the country’s stance and determination to reinforce judicial protection for IPRs. Three IPR courts in the cities of Beijing, Shanghai and Guangzhou explored the application of punitive damages, sparing no efforts to solve such problems as low infringement costs and high costs for safeguarding rights. IPR tribunals were established in Nanjing, Suzhou, Wuhan and Chengdu to be in charge of cross-regional IPR cases in a centralized manner. People’s courts at different levels concluded some 147,000 IPR cases of first instance in 2016, boosting mass entrepreneurship and innovation. As to how people’s courts do a good job in 2017, Mr Zhou Qiang said that it is of necessity to give full play to the functional role of trials in order to maintain stability and drive ahead development. In particular, he proposed to give play to the functional role of IPR trials to stimulate innovation and entrepreneurship of diverse entities.

Mr Cao Jianming, Procurator-General of the Supreme People’s Procuratorate, pointed out in his report that nationwide procuratorate organs pushed forward scientific and technological innovation positively in 2016 by formulating “fifteen opinions” to secure scientific and technological innovation. Special actions were taken to crack down on crimes that infringed upon IPRs, with a total of 21,505 persons sued. 29 provinces, municipalities and autonomous regions, including Hubei, Yunnan and Ningxia, established particular platforms for carrying out administrative enforcement against infringements and counterfeits and sharing criminal judicial information. Efforts were made to strengthen studies on laws and policies for scientific and technical innovation purposes, and to accurately understand “five dividing lines”, such as the dividing line between the legal incomes earned by scientific research personnel via undertaking part-time jobs and the bribes solicited and received by them and the dividing line between their profits derived from IPRs and the graft and bribes received by them. When talking about the work arrangements for the year 2017, Mr Cao Jianming called for giving full play to the protection role of the rule of law in order to promote the sustainable and healthy economic development. Also, focus will be placed on fighting against certain criminal crimes that disrupt the order of the market economy, infringe upon IPRs and encroach upon special government funds. [Provided by LexisNexis China]

2.       State Council Released 2017 Legislation Plan

国务院办公厅关于印发国务院2017年立法工作计划的通知

Recently, the State Council released a notice on 2017 legislation plan to better support social and economic development, and continued opening up. The Patent Law Amendment is in the category of estimated to be completed within 2017. There are also many other regulations to be revised covering people’s livelihood, national security, resource and environment protection, medical negligence and express delivery industry.

3.       SIPO Revises the Patent Examination Guidelines

国知局修改《专利审查指南》

Recently, the State Intellectual Property Office ("SIPO") has issued the Decision on Amending the Patent Examination Guidelines (the "Decision"), which shall come into force as of April 1, 2017.The Decision makes it clear that to the extent of upholding the modification principles, the specific methods for modifying the letter requesting proprietary rights shall be generally limited to the deletion of the patent claims, the deletion of the technical solutions, the further limitation of the patent claims, and the correction of obvious errors. In particular, further limitation of the patent claims means the addition of one or more technical characteristics which are recorded in other patent claims to the patent claims, so as to narrow down the scope of protection. According to the Decision, for the invention patent application files that have been published but the granting of the patent right has not been publicly announced yet, relevant contents in the patent application files can be consulted and copied, including the application documents, publication documents, the notice and decision letter issued to the applicant in the preliminary examination, and main body of the reply given by the applicant to such notice; for a patent right that has been announced and granted, contents that can be consulted and copied shall include the application documents, priority documents and the patent evaluation report. [Provided by LexisNexis China]

『News and Cases』信息速递及案例分享

4.       SPC Issues the 16th Batch of Guiding Cases

最高法发布第16批指导性案例

Recently, the Supreme People's Court ("SPC") has distributed the Circular on Releasing the 16th Batch of Guiding Cases (the "Circular") for courts' reference in trying similar cases.

According to the Circular, the 16th batch includes a total of 10 guiding cases (No.78-No.87), all of which relate to the intellectual property field, including nine civil cases and one criminal case. Civil guiding cases mainly involve disputes over infringement upon the copyright, trademark rights, patent rights and rights of new plant varieties, disputes over the bundle trading in the field of anti-monopoly, and disputes over the abuse of dominant market position, while the criminal guiding case relates to the crime of counterfeiting trademarks. In particular, the guiding case No.78 is "Beijing Qihoo 360 Technology Co. Ltd. v. Tencent Technology (Shenzhen) Co. Ltd. and Shenzhen Tencent Computer System Co. Ltd. (dispute over the abuse of dominant market position)". Ruling of such case requires the consideration of several issues, such as how to determine the relevant market, whether it has the dominant market position or not, and whether it constitutes the act of abusing dominant market position prohibited under the Anti-monopoly Law. [Provided by LexisNexis China]

5.       WIPO: Record Year for International Patent Applications in 2016; Strong Demand Also for Trademark and Industrial Design Protection

世界知识产权组织发布2016年国际专利申请

On March 15, 2017, WIPO released statistics on the global IP industry, including WIPO’s IP filing services for patents, trademarks and industrial designs, with data, diagrams and hyperlinks to videos. In the respect of patent, in 2016, U.S.-based applicants filed 56,595 PCT applications, followed by applicants from Japan (45,239) and China (43,168), which has posted double-digit growth each year since 2002. If this current trend continues, China will overtake the U.S. within two years as the largest user of the PCT System. For trademark, U.S. applicants (7,741) filed the largest number of international trademark applications using WIPO’s Madrid System for the International Registration of Marks in 2016, closely followed by Germany (7,551), France (4,132) and China (3,200). And for industrial designs, Germany with 3,917 designs was the largest user of the Hague System, followed by Switzerland (2,555), the Republic of Korea (1,882) and the U.S. (1,410).

6.       SIPO to Carry out Pilot Arbitration and Conciliation for IP Disputes
国知局：开展知识产权纠纷仲裁调解试点工作

Recently, the State Intellectual Property Office ("SIPO") has distributed the Circular on Carrying out the Pilot Arbitration and Conciliation for Intellectual Property Disputes (the "Circular").

The Circular clearly states that efforts will be made to regulate the arbitration and conciliation for intellectual property ("IP") disputes constantly, explore ways to construct an experts bank for the arbitration and conciliation for IP disputes, drive forward the development of the IP information sharing and case acceptance platform, and actively promote the arbitration and conciliation for disputes over patents, trademarks, copyrights, trade secrets and other IPs. The Circular calls for forming IP arbitration organizations within the chambers of commerce and associations in core sectors and key industries, enhancing cooperation with major national arbitral institutions as well as their local branches or with other arbitral institutions that have relatively powerful local influences, and encouraging the establishment of an institution (center) of IP arbitration according to law or enhancing the capacity and regulating business of selected existing institutions that have laid a solid foundation and held a positive attitude towards IP arbitration. Additionally, the Circular sets out the need to urge and guide lawyers, patent agents, engineering technicians and other professionals to take an active part in arbitration and conciliation for disputes. [Provided by LexisNexis China]

『QBPC Update』品保委更新

Recently, QBPC has solicited comments from members on the updated draft E-commerce Law released by the NPC. Both Chinese and English versions of the files of QBPC members’ comments are available online.

u  Summary of QBPC Comments on the Draft E-commerce Law

u  Consolidated Comments of QBPC Members for the Draft E-commerce Law