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...
Hunan Warrant Pharmaceutical Lost to Nanjing Sanhome in the Levornidazole Patent Case and Hit with over Millions Judgment
Hunan Warrant Pharmaceutical (hereinafter referred to as “Warrant Pharmaceutical”) recently announced that Warrant Pharmaceutical, together with Dalian Zhongxin, faced a defeat, and was ruled to pay Nanjing Sanhome economic losses, punitive damages, reasonable costs, and case acceptance fee a total of about $1.48 million indicated in the civil judgment by Intermediate People’s Court of Hefei of Anhui Province. Warrant Pharmaceutical will appeal.
The case has a history, even earlier than Warrant Pharmaceutical went public.
In August 2019, Nanjing Sanhome filed the lawsuit with the Shanghai Intellectual Property court as the plaintiff against Warrant Pharmaceutical and Dalian Zhongxin separately, claiming the products manufactured, sell, and offered to sell by the defendants allegedly infringed its two patents related to levornidazole.
In May 2020, Shanghai Intellectual Property Court made a judgment over the above case, ruling Warrant Pharmaceutical and Dalian Zhongxin stop infringing Nanjing Sanhome’s invention patents and jointly compensate Nanjing Sanhome for economic losses and reasonable costs of about $42,000 and $14,000, respectively.
Since then, the conflict on the patent issue between Warrant Pharmaceutical’s related parties and Nanjing Sanhome continued, during which, Warrant Pharmaceutical stopped the manufacture and sale of the allegedly infringing product, and issued a recall in December 2021 on the levornidazole that sold to the market.
However, in March 2022, Nanjing Sanhome found Dalian Zhongxin publicized the allegedly infringing product on its official website and WeChat and Hefei Jingdongfang Hospital sold the allegedly infringing product in the following June. Nanjing Sanhome also claimed that the related products had been sold on the public resource website nationwide until its legal action.
The Intermediate People’s Court of Hefei of Anhui Province made the aforementioned judgment after receiving the request from Nanjing Sanhome. (Jiemian News, July 5th, 2023)
Anti-Unfair Competition
China’s First Case where Unfair Competition Founded on the Ground of the Infringement of Foreign Company’s Used Name
Tianjin Intellectual Property Court recently concluded a trademark infringement and unfair competition between Japanese YKK Corporation and a zipper manufacturing company A. This case is China’s first case where unfair competition is founded on the ground of the infringement of the used name of a foreign company. Both parties were satisfied with the judgment and the defendant performed the judgment timely.
The plaintiff YKK Corporation is one of the most well-known zipper manufacturers in the world, the products of which enjoy high popularity and market occupancy. The defendant, company A, sold its zipper products under the used name of the plaintiff’s “吉田”, which constituted unfair competition. In the end, the court ruled the defendant to stop infringement and compensate for the loss.
It is more common for rights holders to sue others for unfair competition based on existing enterprise names, while suing based on the used names is rarely seen in theoretical research and judicial practice. The trial of this case has clarified the thinking and rules of adjudication of such cases, i.e., analyzing from two dimensions, i.e., the basis of right and infringement, combining the inheritance of goodwill carried by the enterprise name of the right holder, the competitive resources and competitive advantages, and whether the infringing behavior is Facebook YouTube LinkedIn What’s New This Month ◆ What’s New This Month ◆ Awards and Recognition ◆ Criteria of Inventiveness Determination for AI-related Patents ◆ Discussion on Common Issues of Protection to Product Packaging and Decoration under Chinese Anti-Unfair Competition Law 2 LINDA LIU & PARTNERS contrary to good faith and business ethics, etc., taking into account the inheritance and protection of the used name, and making determination in a prudent manner by further studying the infringing behavior and the specific facts of the case, so as to guard against and avoid undue generalized protection of used names, thus realizing the suppression of unfair competition and the protection of the order of fair competition. (The Third Intermediate People’s Court of Tianjin, June 10th, 2023)
The Right of Network Dissemination of Information
Employee Sentenced for Secretly Download Source Code
Recently, Dongguan Intermediate People's Court, the second instance court, made judgment over a trade secrets infringement case. A company's senior technical personnel Cheng, who illegally stole the company's source code and other technical secrets, was sentenced to imprisonment for 3 years and 2 months, and fined about $27,880.
Cheng used to work as a technical engineer of a chip company being responsible for the development and programming work for the hardware of chip. He was endowed with a login account of the company's server, and had the access to view and use research and development data in the server.
In June 2021, Cheng found bugs in the server and used it to repeatedly bypass the supervision of the company's terminal monitoring software to download 378 research and development data to his personal computer, including the system source code. In May 2022, the company found that Cheng had stolen the company's source code, and reported it to the public security organ, and the police subsequently arrested Cheng. At the time of the crime, Cheng was not found to have disclosed, used, or allowed others to use the technical information he had stolen.
The first instance of the second court of Dongguan No.2 People’s Court, the first instance court, held that Cheng was only responsible for programming in the company, and his act of copying, downloading, and transmitting the company's technical secrets without the company's legal authorization constituted the crime of infringing trade secrets, and the circumstances were particularly serious, therefore, Cheng was sentenced to three years and six months in prison and fined about $27,880.
Cheng refused to accept and filed an appeal. The second instance Court held that the first instance judgment made clear identification on the facts with sufficient evidence and accurate conviction. Considering that the right holder issued a letter of understanding in the second instance, the court made the afore-mentioned judgment. (Dongguan Intermediate People's Court, June 13, 2023)
Policy Related
Fee Standard in Chinese Yuan for the PCT Application in International Phase Applicable on July 1st, 2023
Following the Memorandum of Understanding for Remittance of Patent Cooperation Treaty (PCT) Fees signed between China National Intellectual Property Administration (CNIPA) and the World Intellectual Property Organization (WIPO), CNIPA collects on behalf of the International Bureau of the WIPO the fees for the international phase of a PCT application in accordance with the Chinese Yuan standard announced by the WIPO, which has been implemented as of July 1, 2023. (CNIPA, June 25th, 2023)
Statistics
The State Council Information Office (SCIO) Held Press Conference on China's Intellectual Property in the First Half of 2023 I. Main statistics
In the first six months of this year, China granted 433,000 invention patents, 1.104 million utility model patents, and 344,000 design patents; accepted 35,000 international applications filed under the World Intellectual Property Organization's Patent Cooperation Treaty (PCT); concluded 33,000 Patent reexamination cases and 4,433 invalidation cases. Chinese applicants submitted a total of 957 international design applications through the Hague System.
As of the end of June this year, the total number of valid invention patents in China exceeded 4.568 million, an increase of 16.9% year-on-year.
In terms of trademarks: In the first six months of this year, a total of 2.018 million trademarks were registered. CNIPA completed the examination of 87,000 trademark opposition cases, and finished 182,000 various trademarks review cases; received 3,024 trademark applications filed by domestic applicants under the Madrid system.
By the end of June this year, the number of valid registered trademarks in China was about 44.235 million, an increase of 9.1%.
In terms of geographical indications: In the first six months of this year, a total of 3 geographical indication products were approved for protection. There were 97 geographical indications approved for registration as collective marks and certification marks, and 3,509 companies approved to use special geographical indications.
As of the end of June this year, a total of 2,498 geographical indication products have been approved, a total of 7,173 geographical indications have been approved as collective marks and certification marks, and a total of more than 25,000 entities have been approved to use the sign of geographical indications.
In terms of integrated circuit layout design: In the first six months of this year, China issued 4,861 certificates for integrated circuit layout design. By the end of June this year, China issued, in total, 66,000 certificates of integrated circuit layout designs.
In terms of intellectual property protection: In the first six months of this year, China handled a total of 21,000 administrative disputes concerning patent infringement at all levels of IP related authorities nationwide, guided the IP related disputes mediation organizations to accept and mediate disputes for 50,000 times, and started the construction of the first batch of ten national IP protection demonstration zones.
In terms of the exploitation of intellectual property rights: In the first six months of this year, the amount of patent and trademark pledge financing reached CNY 267.66 billion, an increase of 64.6%. In the first five months of this year, the total import and export value of intellectual property royalties was CNY 157.78 billion, an increase of 5.8% year-on-year.
2. Main features
I. The number of domestic patents and trademarks has steadily increased. As of the end of June this year, the number of valid domestic invention patents in China was 3.683 million, an increase of 20.4%, and the number of patents that have maintained valid for more than ten years reached 559,000, accounting for 15.2%, an increase of 1.6% over the same period last year. The number of valid domestic registered trademarks was 42.177 million, an increase of 9.4%, showing a trend of steady growth.
II. China has seen an increasing number of innovative companies. The number of domestic companies with valid invention patents reached 385,000, up 60,000 from the previous year, and these companies owed 2.605 million valid invention patents, accounting for over 70% of the domestic total, an increase of 1.8% over the same period last year. Among them, high-tech enterprises and specialized and sophisticated enterprises, also known as the new "little giant" had 1.804 million patents, an increase of 23.3% year-on-year and 2.9% higher than the national average growth rate.
III. The patent reservation in digital technology has been further strengthened. Statistics showed that the three fastest-growing fields in the number of valid invention patents out of the 35 technical fields by the classification standard of the World Intellectual Property Organization (WIPO) were IT methods for management, computer technology, and basic communication processes, an increase of 56.6%, 38.2%, and 26 %, respectively, which were way higher than the national average of 20.4% and provided strong support for the innovative development of China's digital economy.
IV. Domestic applicants became more active in applying for foreign intellectual property rights. In the first six months of this year, CNIPA accepted 33,000 international patent applications filed by domestic applicants via PCT, an increase of 7.1%, and 3,024 applications for international registration of Madrid trademarks, an increase of 12 %. Since China's accession to Hague Agreement in May 2022, domestic applicants lead in the application amount worldwide with more than 150 international design applications per month on average.
V. The volume of imports and exports of China’s intellectual property rights maintained steady growth. From January to May this year, the import value of China's intellectual property royalties was CNY 120.8 billion, and the export value was CNY 36.98 billion. Both import and export volumes increased, and the intellectual property trade showed strong resilience.(CNIPA, July 18th, 2023)
