403 Forbidden

In patent infringement litigations, the right owner usually selects independent claim(s) with largest scope of protection for enforcement of the patent right. Senior patent attorney Bing Wu combines the SPC interpretations and his trial experiences to provide a brief guide on building a good foundation of selecting the rights claims is crucial for winning a patent infringement in China.

In its latest report the Supreme People’s Court explains the new patent, trademark and copyright concepts explored through 2015’s most complex and major IP disputes.

Article 25 of SPC’S Judicial Interpretation on Trial of Patent Infringment Dispute where products infringing a patent right are used, offered to sell, or sold for production or business purposes without knowing said products were manufactured and sold without the authorization of the patentee, and……

Article 14 of SPC’S Judicial Interpretation on Trial of Patent Infringment Dispute , the People’s Court, in determining the knowledge level and cognitive ability of the ordinary consumers for a design, generally shall consider the design space of the same or similar type of products to which the patented design belong at the time of the occurrence of the alleged infringement action.

Article 21 of SPC’S Judicial Interpretation on Trial of Patent Infringement Disputes where a provider provides, for production or business purposes and without authorization of the patentee, a product to another party to commit a patent infringement action, with the knowledge that the product is material, device, component, intermediate and so on specialized for exploiting the patent, the People’s Court shall support the right owner if he or it assets that the action of the provider belongs to assisting another party to commit a tort provided in Article 9 of the Tort Law.

In April, 2016, Beijing Intellectual Property Court made the first instance judgment, canceled the Rejection Appeal Decision regarding the mark “AIR RESCUE & Design” made by the Trademark Review & Adjudication Board (TRAB), and determined that the TRAB shall make a new decision on the application for review regarding the mark “AIR RESCUE & Design”.

Two U.S. brands recently battled brand squatters in China with very different outcomes. Facebook won. Apple lost. Jason Wang and Amy Hsiao look behind these different results for strategic insights. What are the key issues to bear in mind when an infringer copies your brand – in China? The authors, including the lead attorney for the Facebook case, tell you the secrets.

Article 20 Where process or treatment is made to a follow-up product, which was obtained by further processing or treating a product directly obtained by a patented process, the People’s Court shall determine the action does not belong to “using the product directly obtained by the patented process” prescribed in Article 11 of the Patent Law.

The Apple-Facebook different outcome is not a result of inconsistency or “double standard”; rather, it is a result of applying the most fitting sets of laws — under the Chinese system — to the facts in each case. Although the two cases involve similar facts, the attorneys in each case have relied on different sets of law as their primary arguments and this strategy difference has had a crucial impact on the final outcome.

Article 27 Where it is hard to determine a right owner’s actual loss caused by infringement, the People’s Court shall request the right owner to provide evidence regarding benefit that the infringer has obtained from the infringement according to Article 65, Paragraph 1 of the Patent Law.