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...
Sharp has Signed Cross License Agreement on Telecommunication Patents with Xiaomi and Withdrawn Lawsuit
Recently, Sharp Corporation (“Sharp”) and Beijing Xiaomi Mobile Software Co., Ltd. ("Xiaomi") have reached an agreement on cross patent license relating to wireless communication technologies of both parties. The patent cross license agreement also ends the litigation in China that Sharp filed against Xiaomi in September 2022.
Cross license agreement allows multiple companies to use each other's patents without the burden of paying royalties. Where the number or value of patents of one party is higher than that of the other party, they may charge for the difference.
Sharp owns over 6000 patents involving LTE (4G) and standard essential patent on the new communication standard 5G. Sharp also signed cross license agreement with Vivo and OPPO earlier. (May 27th, 2024, Nikkei China)
Unfair-competition
China’s First Unfair Competition Cases Involving Anti-dilution Protection for Renowned GIs
Recently, Suzhou Intermediate People’s Court of Jiangsu province, China concluded the unfair competition dispute brought by the Bureau National Interprofessionnel du Cognac (BNIC) against F Motor Company (China) and Chang’an F Motor Company (hereinafter referred to as “F Motor”) with a high compensation of CNY 2 million (about USD 275, 400) awarded. This is China’s first unfair competition case involving anti-dilution protection for global renowned GIs. The judgment announced established the boundary of the competition act by using globally renowned GIs to resolutely combat the unfair competition behaviors that violate the principle of good faith and business ethics and dilute the protection of internationally renowned geographical indications. This case has been selected as China's top ten judgements in intellectual property cases that are of the most significant research value.
In 2009, the former General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China accepted the registration application of GIs for Cognac (干邑) filed by BNIC in accordance with the Provisions for the Protection of Products of Geographical Indication, and approved the protection for Cognac as geographical indication in China.
Since 2018, the BNIC found that a car company named its car on sold as “Cognac Special Edition” and the related car color as “Cognac brown”, and at the same time there was a large amount of relevant publicity on the internet. Therefore, BNIC believed the defendant constituted the unfair competition by using the geographical indications for Cognac in the commercial promotion of the cars involved, and filed a lawsuit, requesting the defendant to stop the infringement, eliminate the impact, and compensate economic losses and reasonable expenses for rights protection in total of CNY 2 million (about USD 275, 400).
After hearing, the court of the first instance held that under the circumstance that the geographical indication of Cognac is highly well-known, the two defendants, as automobile manufacturers with a global business presence, are impossible not to know the geographical indication of Cognac, and their duty of care for intellectual property rights should be higher than that of other ordinary civil subjects. They should carefully consider the naming and publicity of automobiles, trying to avoid infringing on the legitimate rights and interests of others.
Although Cognac as a geographical indication mainly refers to wine, under the diversified development of modern industries, cross-border cooperation and mixed operations are becoming more and more common. The use of “干邑” and “Cognac” by the two defendants is very likely to cause confusion among the relevant public. Such behavior is obviously an unfair use of the goodwill of “干邑” to lead people to mistakenly believe that it is a Cognac product or has a certain connection with Cognac, which constitutes unfair competition according to law. Therefore, the Suzhou Intermediate People's Court made the aforementioned judgment.
After the first-instance judgment, the two defendants appealed. The High People's Court Jiangsu Province heard and ruled in accordance with the law to dismiss the appeal and uphold the original judgment.
The court specifically pointed out that a critical factor in its determination that the two defendants constituted unfair competition was to protect the interests, further, to prevent the risk of the generalization of the geographical indication of Cognac. Specifically, in this case, even if the behavior of the two defendants would not cause confusion or misunderstanding among the relevant public, in view that they are multinational car manufacturers with a large customer base, their use of the geographical indication of Cognac in the name of their automobile products and interior colors would cause the relevant public to conceive other understandings that such geographical indication may also refer to automotive product name and color name, despite that the first meaning of the term, in consumer’s original conception, is the special origin of brandy wine. If it is not stopped, there will be an increasing number of industries use the geographical indication of Cognac to refer to colors, which will inevitably weaken its original meaning of referring to the special origin of brandy wine and increase the risk of the generalized use of the geographical indication of Cognac. (May 20th, 2024, People's Court Daily)
Information network dissemination rights
Retrial Announced! Baidu Netdisk Case Settled
Recently, the High People's Court of Guangdong Province pronounced a retrial judgement on the dispute between TVBC Guangzhou and Baidu Company (hereinafter referred to as Baidu) over infringement of the information network dissemination rights of works, and ordered Baidu to compensate TVBC Guangzhou for economic losses and reasonable rights protection expenses totaling CNY 100,000 (about USD 14,286).
TVBC Guangzhou is the exclusive licensee of the information network dissemination rights of the audio-visual work “Gilded Chopsticks” in mainland China. TVBC Guangzhou found users can download and share “Gilded Chopsticks” files through Baidu Netdisk, it accused Baidu of direct and indirect infringement and requested the court to order Baidu to compensate for economic losses and reasonable rights protection expenses totaling CNY 2.15 million (about USD 296,100).
The People's Court of Tianhe District of Guangzhou determined in the first instance that Baidu did not constitute infringement and rejected all the claims of TVBC Guangzhou. TVBC Guangzhou was dissatisfied and appealed to the Guangzhou Intellectual Property Court.
The Guangzhou Intellectual Property Court determined in the second instance that Baidu constituted direct and indirect infringement and ordered Baidu to compensate for economic losses and reasonable rights enforcement expenses totaling CNY 500,000 (about USD 68,850). Baidu was dissatisfied and applied for a retrial to the Guangdong High Court.
The High Court of Guangdong Province found that TVBC Guangzhou obtained the exclusive information network dissemination rights of the work “Gilded Chopsticks” in mainland China from May 2017 to December 2018 through the transfer of authorization from TVBC Shanghai. The TVBC Guangzhou used multiple accounts to test Baidu Netdisk to prove that Baidu Netdisk can provide the services of “upload in seconds”, “download offline”, “share”, and “watch online” of “Gilded Chopsticks”.
On August 30th, 2017, TVBC Shanghai sent a notification letter, requesting Baidu to take measures to stop the infringement based on the file name and hash value information it provided. Baidu believed that the notification was not effective and ignored it.
The High Court of Guangdong Province took over the retrial of the case and held that when users used Baidu Netdisk to “download offline” the files involved in the case, the download page could display the download speed and progress of the files, proving that there was file data transmission between Baidu Netdisk and the third party, therefore, the original of the files involved in this case came from the third party. Baidu Netdisk was only a tool, and did not directly infringe upon the copyright. The notification sent by TVBC Shanghai was ineffective for lacking preliminary evidence that could prove the infringement acts of the network disk users in relation to the work involved. Baidu should not be liable for not taking measures to stop the infringement after receiving the notice. However, before fixing the lawsuit request with the first instance court, TVBC Guangzhou sent supplementary evidence of the infringement act conducted by Baidu network disk users to Baidu. Baidu only disconnected the infringing link involved and did not take necessary measures to block the “sharing” function for the file. During the 4 months, counting from the date of sending supplementary evidence to the expiration date of the authorization, the losses of TVBC Guangzhou were increased. Baidu has subjective fault for this and should bear the corresponding indirect infringement liability.
The High Court of Guangdong Province made the above judgment. (May 30th, 2024, The High Court of Guangdong Province)
Data
Grade III Level A Hospitals Commercialized Nearly 2,000 Patents Nationwide Last Year
with 6 Projects Exceeded, CNY 100 Million in Amount
Recently, at 2024 the Sixth China Medical Innovation Alliance (CMIA) Medical Innovation Conference, the “China Hospital Innovation Transformation Report (2023)” was officially released.
The report shows that in 2023, the total number of patent commercialization by Grade III Level A hospitals was nearly 2,000, a year-on-year increase of 28%; among them, the number of patent assignment was 1,455, a year-on-year increase of 17%, and the number of patent licenses was 511, a year-on-year increase of 69%. (May 25th, 2024, www.cls.cn)
