Recently, our firm won the first instance of an administrative litigation case for invalidation of an invention patent, in which it is ruled that the invention patent should be comp...
Introduction In the chemical field, it is difficult to seek invalidation of a patent claiming to have achieved unexpected technical effect. This case provides a strategy for success...
Judgment Pronounced on Infringement Case Involving Fan Fiction
Recently, the Guangzhou Intellectual Property Court made a final judgment on the case of Jin Yong, lionized author of Chinese martial arts epics, who sued author Jiangnan's fan work “Ci Jian De Shaonian” (The Boy Here), indicating that the alleged infringement constituted copyright infringement and unfair competition respectively. The court ordered Jiangnan, the author of "The Boy Here", to pay CNY 1.88 million in compensation, and the two related companies shall bear joint and several liabilities of CNY 330,000.
The second instance court, Guangzhou Intellectual Property Court, held that the plots of The Boy Here, in addition to a small number of similar elements, had differences in the clues and events to promote the development of the story, scene design and arrangement, as well as the internal logical and causal relationship, and the specific details and the story outline, thus, did not constitute a substantial similarity. However, on the whole, the group portraits of more than 60 characters, such as Guo Jing, Huang Rong, Qiao Feng, and Linghu Chong, are the reflection of the choice and arrangement of Jin Yong in the names, personality features, character relationships and backgrounds of the characters, which can be determined as sufficiently described and specific enough to form a structure with strong logical connections among the internal elements that fall into the protection scope of “expression” in copyright law. The names of most of the characters, and the personalities and relationships of the main characters in The Boy Here were similar to those of Jin Yong’s novels, which constituted plagiarism and infringed the copyright of the works involved, and the corresponding civil liability should be borne according to law.
At the same time, considering that The Boy Here has the same or similar character names, personalities, relationships as those in the four works The Legend of the Condor Heroes, The Demi-Gods and Semi-Devils, The Smiling Proud Wanderer, and The Return of the Condor Heroes, but different in plots or belong to the same categories of literary works and the readership, the court did not order the defendant to stop the infringement on the premise of taking other alternative measures, including making adequate, practical, and comprehensive compensation or paying for the economic losses, to meet the diverse needs of readers, balance the interests of all parties, and promote the development and prosperity of the cultural industry. Meanwhile, the court also clearly indicated that if The Boy Here needs to be republished, it should pay economic compensation to the rights holders of the above-mentioned four works based on the proportion of the elements used in the book, the financial compensation shall be paid at 30% of the royalties from its republication. (May 13th, 2023, Beijing Youth Daily)
Anti-Unfair Competition
The first unfair competition case involving “Youth mode” national wide concluded
Recently, the court of Binhai New Area of Tianjin Municipality concluded the nation’s first unfair competition case involving "youth mode" according to law, determining that the software “advertisement removing tool” operated by the defendant, a company in Beijing, constitutes unfair competition by guiding users to block "youth mode" on audio and video and live broadcasting platform, and ruled the defendant to compensate the plaintiff Tencent company CNY 3 million for economic losses.
The “youth mode” in the plaintiff’s apps “Tencent Video” and “Tencent NOW Live” allocates high-quality content suitable for juveniles, sets restrictions on social and consumption functions such as recharge, hits, and gift-giving, as well as the anti-addiction mechanism to enable the guardian to set the use period and duration limit by setting a password.
The defendant's app “advertisement removing tool” operated by a Beijing company attracted users with “Ad blocking and automatically skip the advertisement of launch page” as a selling point, took the function of automatically closing youth mode pop-ups as one of the Member privileges, and guided users to use such function by claiming free for a limited time resulting that users in a number of network audio and video platforms skip or block the pop-up window of "youth mode". This not only violates the service agreement of Tencent’s products but also makes the high-quality content filtered for juveniles unable to be effectively disseminated that lead the "youth model" useless.
The court held that the accused act, in essence, has obstructed and destroyed the normal operation of other's networking products and services in order to obtain economic benefits on the grounds of technological neutrality, which not only violated the relevant laws and regulations on the protection of minors and the guidance of relevant regulatory departments, but also damaged the competing interests of other operators, the legitimate rights, and interests of consumers. Thus, unfair competition is established and the above judgment is made. (May 23rd, 2023, Beijing Youth Daily)
Statistics
IP5 Statistics Report 2021 Edition (Chinese/English Version) Released
The IP5 Statistics Report (IP5 SR) is jointly produced by the “IP5 Offices” which consist of the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the China National Intellectual Property Administration (CNIPA), and the United States Patent and Trademark Office (USPTO), along with the support of the International Bureau (IB) of the World Intellectual Property Organization (WIPO).
The main content of the report includes the following four parts: First, the introduction of IP5 offices, which focuses on their latest development and relevant data. The second is worldwide patenting activity, including global invention patent applications, grants, flows of patent applications between IP5 offices, and patent families. The third is the patent activities at the IP5 offices, showing the latest patent activities at the five offices by comparing the patent applications and authorization data in 2020 and 2021. Final, part is the introduction of the latest development of patent activities via Patent Cooperation Treaty (PCT) at IP5 offices. (May 31st, 2023, CNIPA)
CNIPA Released Work Report on the Progress on Assistance in Intellectual Property Protection 2022
Recently, the China National Intellectual Property Administration (CNIPA) released a work report on the progress of assistance in intellectual property rights protection in 2022.
The report pointed out that in 2022, the website of China Intellectual Property Rights Protection Assistance was viewed more than 3 million times, up by 33.1%. China’s IPR protection assistance agencies handled more than 71,000 cases seeking IPR protection assistance, including 32,000 from micro, small and medium-sized enterprises; provided more than consulting and guidance services for 46,000 times; organized more than 2,400 public benefit IP protection seminars and training sessions; provided 11,000 comments for IP infringement judgments; provided IP analysis and early warnings for 618 times; provided on-site and other rights protection assistance services for 309 times.
By the end of 2022, there were more than 2,000 assistance agencies in China, of which 28 provinces (districts and cities) had established three-level assistance at the provincial, municipal, and county levels, and 16 provinces (districts and cities) had realized the full coverage of such assistance at the local and municipal levels. More than 900 universities and social organizations, 7,000 volunteers, and 10,000 experts have participated in the IP rights protection assistance services. (June 4th, 2023, legaldaily.com.cn)
2022 CNIPA Annual Report Released
1. Patent
In 2022, the number of China’s invention patent application totaling 1.619 million up by 2.1% year-on-year; China’s utility model patent applications totaling 2.951 million, up by 3.5% year-on-year; China’s design patent applications were 795,000, drop by 1.4%.
In 2022, a total of 798,000 invention patents were granted, up by 14.7% year-on-year. A total of 2.804 million utility model patents were granted, down by 10.1% year-on-year, and 721,000 design patents were granted, down by 8.2% year-on-year.
In 2022, CNIPA accepted 74,000 international patent applications submitted through PCT, up by 1.4% year-on-year; completed 78,000 International Search Report (ISR), a year-on-year drop of 0.7%.
In 2022, there were 106,000 PCT international applications entered China national stage, decrease by 1.2% year-on-year, including 105,000 invention patent applications and 746 utility model patent applications.
In 2022, Chinese applicants submitted 1,286 applications for the international registration of designs through the Hague Agreement. The number of international design registration applications entered China after the publication was 607.
In 2022, CNIPA accepted 105,000 patent reexamination requests, up by 38.1% year-on-year. The average period of concluding a reexamination case was 17.2 months.
In 2022, a total of 7,095 patent invalidation requests were accepted, down by 7% year-on-year, with 7,879 were closed, up by 11.5% year-on-year. The average period of concluding a patent invalidation request was 5.7 months. Among the concluded invalidation cases: for invention patent, 27.9% were totally invalidated, 15.4% were partially invalidated, and 56.7% were maintained; for utility model patent, 41.4% were totally invalidated, 18.7% were partially invalidated, and 39.9% were maintained; for design patent, 53.8% were totally invalidated, 1.4% were partially invalidated, and 44.8% were maintained.
2. Trademark
In 2022, the number of trademark registration applications in China reduced 20.5% to 7.516 million.
In 2022, a total of 7.056 million trademark applications were examined, drop by 33.2% year-on-year.
In 2022, the number of registered trademark was 6.177 million, marking a 20.2% decrease.
For the trademark registration examination in 2022, preliminary approval accounted for 52%, partial rejection and rejection accounted for 14.4% and 33.6% respectively.
In 2022, a total of 5,827 applications for Madrid international trademarks registration filed by Chinese applicants.
In 2022, the top ten contracting parties that are designated by Chinese applicant are the United States, Russia, Japan, the United Kingdom, Indonesia, South Korea, Thailand, Malaysia, Vietnam, and the European Union.
In 2022, a total of 25,000 Madrid international trademark registration extension applications designating China filed by foreign applicants were received.
In 2022, a total of 146,000 trademark opposition requests were filed with 17.2% decrease year-on-year.
In 2022, the established opposition cases took 45.1% of the cases, partially established took 11.8%, and not established took 43.1%. Malicious registration had been effectively contained in the opposition procedure.
In 2022, there were 423,000 accepted trademark review cases with a downtrend of 10.6% year-on-year. Among them, there were 332,000 cases involving the review on the rejection and 91,000 were the complicated cases.
In 2022, among the concluded review cases on the rejection, for the trademark registration application, totally rejected, partial rejected, and initial judged took 65.8%, 10.9%, and 23.3% respectively; for concluded invalidation cases, totally invalid, partial invalid, and maintain valid took 62.1%, 12.9%, and 25%, respectively; for the trademark cancellation cases, totally cancelation, partial cancelation, and maintain valid took 49%, 33.8%, and 17.2% respectively; for the review on rejection cases, not approved for registration, partially not approved for registration, and approved for registration took 67.9%, 21.1%, and 11% respectively.
3. Integrated circuit layout design
In 2022, a total of 14,000 registration applications for integrated circuit layout design were received, down by 29.2% year-on-year. A total of 9,106 certificates were issued, a year-on-year decrease of 30.4%. (June 5th, 2023, CNIPA)
