Zhang Wen, president of the Beijing Internet Court, introduced that the “Rules” emphasizes that the principle of court trials is “online as the principle and offline as the exception”. Online litigation identity authentication, account use, dress, environment, discipline, etiquette, “not appearing on time”, “quitting halfway”, asynchronous hearing methods, audio recordings, court transcripts, public hearings, and live court hearings are regulated and clarified.
The first thing to be clear is that the online court trial referred to in the Specifications refers to the “online video method”. Zhang Wen said: “The formal hearing must be in the form of video. Online text and online voice should not be used as the mode of hearing, but can be used in mediation and conversation.”
(Source: Client of China Youth Daily)
Beijing Intellectual Property Court Fully Enters “Cloud Mode”
“Is the parties clear, is the voice clear? Is the picture smooth?” “The voice is clear and the picture is smooth.” “Okay, please keep the signal flowing, and the court is now open!”. This is a scene of the “cloud court trial”.
The case was originally scheduled to begin on February 13. The collegiate panel was formed by Wang Jinshan, secretary of the party group and president of the Beijing Intellectual Property Court, Zhang Xiaojin, president of the second court, and Judge Fan Miduo. However, due to the impact of the epidemic, the court could not hold the hearing on time. After learning about the parties’ difficulties, the collegiate bench took the initiative to contact the parties and patiently guided the parties to debug the equipment. On the afternoon of February 19th, the trial was conducted remotely through the “cloud court” system of the Beijing Court. In order not to increase the litigation burden on the parties, the collegial panel issued a judgment in court after the review, and the judgment rejected the plaintiff’s claim.
Similar online and offline trials are not uncommon in the Beijing Intellectual Property Court. Relying on the “Beijing Cloud Court” and “Internet Court” systems, the Beijing Intellectual Property Court has successfully completed online trials of more than 50 cases, covering all types of intellectual property cases such as patents, trademarks, and copyrights. Some cases are judged or conciliated in court to guarantee the realization of litigant rights of the parties.
(Source: Intellectual Property Beijing)
China National Intellectual Property Administration: open up “green channel” for patent and trademark applications relating to the prevention and treatment of coronavirus pneumonia
On the morning of February 13th, the China National Intellectual Property Administration convened a meeting of the Party Group and the Bureau’s Leading Group Meeting on New Coronary Pneumonia Epidemic Situation,conveying the spirit of General Secretary Xi Jinping ‘s important speech at the Standing Committee of the Political Bureau of the CPC and the spirit of an important speech for investigating and guiding the epidemic prevention and control in Beijing; communicate and learn the work of the Central Leadership Group Meeting on New Coronary Pneumonia Epidemic Situation; to study the next step for epidemic prevention and control work and policy measures to support enterprises to return to work. Shen Changyu, Secretary of the Party group, director of the Bureau and leader of the epidemic response leading group of the Bureau, conveyed relevant spirit and made arrangements for relevant work.
The meeting stressed that it is necessary to ensure the normal operation of all businesses in the overall situation. We should do a solid job in the application acceptance, examination and allowance of patent, trademark and integrated circuit layout design, and do a good job in the work of service window; we should actively support enterprises to resume production and start construction of new projects; “green channel” should be established to patent and trademark applications relating to novel coronavirus pneumonia filed by enterprises returning to production and new projects; speed up handling efficiency; guide and support enterprises to use intellectual property rights for pledge financing, so as to ease financial difficulties; we should, as always, do a good job in protecting intellectual property rights, protect the legitimate rights and interests of domestic and foreign-funded enterprises in accordance with the law, and create a good business environment and innovation environment.
(Source: IPRdaily)
European Intellectual Property Office Announces Extension of Time Limit for Chinese Applicants’ Trademark and Design Case
On February 14, 2020, the European Intellectual Property Office issued a notice on the extension of time limits for Chinese applicants’ EU trademark and design applications during the special period of the new crown pneumonia outbreak.
The content of the announcement mainly relates to cases of Chinese trademark and design applications, oppositions, and invalidations filed by Chinese applicants at the European Intellectual Property Office. If the legal period is between January 30, 2020 and February 28, 2020 (including January 30, 2020 and February 28, 2020), it can be extended to February 29, 2020. Applicants in China can make adjustment arrangements and work preparations in accordance with this regulation.
(Source: CNIPR)
Beijing’s Intellectual Property Service Industry Takes Various Measures to Fight the Epidemic
At present, it is at a critical time to prevent and control the pneumonia outbreak of new coronavirus infection. With the nation’s concerted efforts to combat the new coronavirus pneumonia epidemic, the pace of the fight against the epidemic by the intellectual property service industry in the capital has never stopped.
During the fight against the epidemic, the party committee of the Beijing Intellectual Property Service Industry Association, the joint party branch of the Beijing Patent Agents Association, and the Xinlian Branch of the Beijing Intellectual Property Service Industry Association jointly issued “Wind and rain together, resolutely win the fight against epidemic prevention and control-to the city’s intellectual property service industry anti-epidemic initiative”. This document calls on competent units and personnel to contribute to the local epidemic prevention and control work in various forms, and provide support for Hubei Province and other areas with severe epidemic situation. The initiative has received positive response from the majority of member units.
Dragon IP, with the help and communication of the association, donated 612,750 thousand yuan raised by the company and its employees to Leishenshan hospital through Wuhan Charity Federation for the purchase of epidemic prevention materials. At the same time, other member units also contribute their love through various channels.
(Source: IP Today)
Three departments of the Ministry of Education issued important documents! Universities should stop subsidizing and rewarding patent applications
On February 21, the Ministry of Education issued on its official website “Opinions of the Ministry of education, the China National Intellectual Property Administration, the Ministry of science and technology on improving the patent quality of institutions of higher learning and promoting the transformation and application” to improve the patent quality of colleges and universities in an all-round way.
This document includes many contents, and some key contents are as follows:
In terms of the disclosure system of the achievements of job-related science and technology, no one is allowed to use the achievements of job-related science and technology to establish an enterprise or conduct any other behaviors without the permission of the unit.
In terms of talent evaluation and employment system, colleges and universities should be guided by quality and transformation performance and pay more attention to patent quality, transformation and utilization. In policies such as promotion of professional titles, performance appraisal, post appointment, project conclusion, talent evaluation and scholarship evaluation, universities will resolutely put an end to simply taking the number of patent applications and allowances as the assessment content, and increase the weight of patent application performance.
In terms of the incentive policy of patent subsidy, colleges and universities should be guided by optimizing patent quality and promoting the application and transformation of scientific and technological achievements. It is necessary to stop subsidizing and awarding patent applications, substantially reduce and gradually cancel awarding patent allowances. The inventor or team may be rewarded by “post subsidy” such as increasing the proportion of conversion income.
(Source: Zhejiang Education News)
Give tit for tat! Huawei sued US operator for patent infringement and claimed US $1 billion
According to Lei Feng net, On February 6, Huawei announced in Shenzhen that it had filed a patent infringement lawsuit against Verizon, the largest communication operator in the United States, in the eastern and western district courts of Texas.
In the lawsuit, Huawei argued that Verizon had infringed 12 of its patents; these 12 patents are not related to 5G, but to computer network, download security, streaming media transmission and other fields of technology.
Huawei said that since February 2019, Huawei has held many consultations with Verizon and provided Verizon with a series of patent certificates and relevant evidences. But the two companies did not reach a consensus.
Huawei said in a statement:
Since 2015, Huawei has received more than $1.4 billion in patent licensing fees. So far, Huawei has also paid $6 billion for the legitimate use of patented technology developed by its peers in the industry. 80% of these licensing fees have been paid to companies in the United States.
At the same time, song Liuping, Huawei’s chief legal officer, said:
Verizon’s products and services benefit from Huawei’s many years of patented technology. Over the years, we have successfully negotiated patent license agreements with many companies. Unfortunately, when an agreement fails to be reached, we have no choice but to seek legal redress.
(Source: Lei Feng net)
Notice from Dragon IP
Our agency fee for obtaining paper patent certificate
On January 23, 2020, the China National Intellectual Property Administration issued announcement No. 349. For the patent electronic applications after March 3, 2020 (inclusive), the China National Intellectual Property Administration will issue an electronic patent certificate through the CPC (patent electronic application system) instead of the paper patent certificate.
Upon instruction from our clients, Dragon IP can obtain a paper patent certificate with an agency fee of 300 Yuan.
Dragon Special Report and Agency Practice
Case study on filing supplementary experimental data in chemical patent invalidations and litigations (2/2)
3.2 Supplementing data in the process of proving inventiveness
Article 22.3 of the PRC Patent Law
“Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents a notable progress”.
In cases of partial invalidation or administrative proceedings, the invalidation requestor may supplement experimental data to compare parameters or effects not disclosed in the reference documents with the target patent to be invalidated. On the other hand, the patentee may supplement experimental data to prove that the patent has significant effects compared to reference documents. Here are some examples for further explanation.
Case 3: invalidation decision No. 11858 ④ (invalidation decision date: July 3, 2008)
Claim 1: Non-solvated crystalline … Raloxifene hydrochloride, basically demonstrating using copper radiation to obtain the following X-ray diffraction pattern: …
The invalidation requestor submitted the following evidence:
Evidence 1, foreign journal papers, published the preparation of purified raloxifene hydrochloride, but did not disclose the corresponding X-ray diffraction patterns;
Evidence 2: the experimental report issued by a university aims to reproduce evidence 1 and the method disclosed in the patent;
Evidence 4: a test report issued by the university comprising X-ray diffraction of the product with the above reproduction experiment.
The purpose is to prove that the sample prepared according to evidence 1 is consistent with the X-ray diffraction data of the product claimed in claim 1 of the present patent, that the crystal forms of the two products are the same, and that claim 1 does not possess novelty.
The patentee submitted the counter evidence:
Counter evidence 1: the inventor states that evidence 1 does not disclose the “crystalline” and “nonsolvent” characteristics of its final product. The patent obtains the non solvate of raloxifene hydrochloride, whereas evidence 1 actually obtains the chlorobenzene solvate or chlorobenzene / THF solvate of raloxifene hydrochloride.
Counter evidence 4-8: a series of evidences, patent documents, notarial certificates, etc., proving that the professor of the university which issued evidences 2 and 4 has an interest in the invalidation requestor.
For the above evidences, the collegial panel mainly finds them as shown in Table 2 below:
Table 2
|
Whether it is authentic |
Grounds |
|
|
Evidence 1 |
yes |
During the oral hearing, the petitioner presented the evidence 1 with the red seal of “collection of books in the library of Shanghai Institute of pharmaceutical industry” |
|
Evidence 2 Evidence 4 |
no |
(1) Evidence 2 has the seal of laboratory, but no signature of natural person; (2) The issuing unit did not send people to appear in court; (3) No seal of the issuing unit is found in the 20070322-3 spectrum of evidence 4; (4) The data of sample 3 in Table 1 on page 2 of evidence 2 does not correspond to the data marked in the spectrum of 20070322-3 in evidence 4; (5) The order of completion of these evidence materials shall be the earliest X-ray diffraction pattern (i.e. evidence 4), the second is the experimental report (i.e. evidence 2), and the last is the request for invalidation. However, the last paragraph on page 3 of evidence 2 refers to the X-ray diffraction pattern that should be completed the earliest as “evidence 4”, which is the same as the number and wording of the evidence in the final request for invalidation. Therefore, it is difficult for the collegial panel to confirm that evidence 2 is an objective experimental report completely unrelated to this request for invalidation. (6) The description of the experimental process in evidence 2 only copies the second paragraph of column 1 on page 1066 of evidence 1. It lacks detailed recitation of the experimental process, such as specific descriptions of the source of reagents used, instruments used for testing, test conditions and other conventional experimental conditions. There is also a lack of analysis and reasoning process to draw the above conclusions from the experimental results. Those skilled in the art cannot clearly or completely reproduce the whole process of the experiment. |
|
Counter evidence 1 |
no |
Witnesses appear in court, (1) The witness of counter evidence 1 is an employee of the patentee, who has a direct interest in this case, and cannot be used as a basis for determining the truth and objectivity of the claimed content alone; (2) There is no other assisting evidence. |
It can be seen that the form of experimental evidence is very important. If the witness is a unit, it needs to seal the document, and it is better to have the signature of the natural person issuing the certificate and appear in court to accept the cross examination. The experimental evidence should be objective, and the details and consistency of the experiment and record should be guaranteed.
If a witness does not appear in court or is an interested person, it does not necessarily result in the evidence not being accepted, but it cannot be used as the basis for determining the evidence alone.
Although the case is relatively early, the analysis of evidence is detailed. From the aspects of experiment preparation, record, witness signature, appear in court, witness testimony and so on, the clear point of view put forward is of great value for guiding posterity how to submit experimental evidence.
Case 4: No. 12206 invalidation decision ⑤ (invalidation decision date: August 27, 2008)
Supreme law (2011) Zhixing Zi No. 86 ⑥ (ruling date: July 27, 2012)
Claim 1: The crystalline monohydrate of compound (I) of formula (I) is:
it is characterized by a single oblique crystal and has the following measurements: A = 18.0774 angstroms, B = 11.9711 angstroms, C = 9.9321 angstroms, θ = 102.691 degrees, V = 2096.96 angstroms.
In the process of invalidation, the patentee submits the statement of observation in response to OA1 in the substantive examination stage, including experimental data (counter evidence 1).
The collegiate panel believes that “Counter evidence 1 filed by the patentee is experimental data filed after the application date (response to OA1) giving the teaching of particle size stability of crystalline monohydrate after micronization. Since the technical effect taught is not based on the patent application document and is not taught in the prior art, the collegial panel will not consider the data in the inventiveness evaluation of this case.” ⑥
The Supreme Court also holds that “the description of physical stability in the specification only refers to crystal shape and lattice, does not involve ‘particle size’ mentioned in the counter evidence 1, and does not give relevant technical teaching” ⑥.
That is to say, the trial of the case is based on the principles recited in the examination guidelines revised in 2017: “The technical effect proved by the supplementary experimental data should be obtained from the contents of the patent application disclosure by the technicians in the technical field”.
The above principle is widely used in cases. Table 3 below is a summary of some invalidation decision cases in 2017-2019:
Table 3
|
Serial number |
Title |
Invalidation decision No |
Decision day |
Purpose of supplementary data |
Examination results and reasons of supplementary data |
|
1 |
New triazolo (4,5-d) pyrimidine compounds |
No. 33591⑦ |
20171010 |
To prove that the patent possesses inventiveness |
Not accepted, reason: “No experimental data concerning metabolic stability is given in the whole patent document. According to the prior art, those skilled in the art cannot expect the compound of the patent to have good metabolic stability. Therefore, the patentee should not be allowed to prove the unconfirmed technical effect in the original patent application document by submitting experimental data later”. |
|
2 |
Treatment of moderate and high non Hodgkin’s lymphoma with anti-CD20 antibody |
No. 34751⑧ |
20180124 |
To prove that the patent possesses inventiveness |
Not accepted, reason: Although the patentee submits the counter evidence 1 to prove that the technical effect of the combination of anti-CD20 antibody and CHOP in the treatment of DLCL with large lesions is substantially superior to the general level of the prior art recognized by those skilled in the art, this effect cannot be obtained by those skilled in the art after reading the original application document. Therefore, it cannot be used as the basis for determining that the patent has obtained unexpected technical effect. |
|
3 |
Preparation process, tube and device of wound repair agent composition |
No. 40433⑨ |
20190528 |
To prove that the patent possesses inventiveness |
Not accepted, reason: This patent has neither clearly recited nor confirmed the effect of HA on the stress protective screen of platelets and the early release of stronger cytokines. Although the specification of the patent recites better mechanical strength and faster wound healing ability, no experimental data is provided to confirm that. These are all technical effects that cannot be confirmed by those skilled in the art based on the recitations of the original application documents. The disclosure of the contents recited in embodiments 3 and 4 in the later counter evidence 1 does not prove that the patent has paid attention to and confirmed the effect before the priority date. The effect claimed by the patentee cannot be used as the factual basis for determining the technical problems actually solved by the invention and evaluating the level of inventiveness. |
|
4 |
An anticancer injection and its application |
No. 41183⑩ |
20190822 |
To prove that the patent possesses inventiveness with data submitted in the substantive examination phase |
Not accepted, reason: The specific composition of the test sample is not recited in the report, so the corresponding relationship with the injection of the patent has not been established, which is not enough to prove the authenticity of the experimental data of in vitro cell detection recited in the specification. |
|
5 |
Reactive dye mixture and its application |
No. 35106⑾ |
20180228 |
To prove that the patent possesses inventiveness |
In the invalidation decision, there is no evaluation of the supplementary experimental data, but ultimately the patent right remains valid. The collegial panel should think that the content recited in the specification is enough to prove that the patent is inventive, so it did not evaluate the supplementary experimental data. |
|
7 |
Water soluble ibuprofen prodrug with positive charge and rapid skin penetration |
No. 38911⑿ |
20190130 |
To prove that the patent possesses inventiveness |
Not accepted, reason: Since only the experimental results are recited and the experimental solution is not described or described differently from the patent, the collegial panel will no longer analyze and comment on the relevant situation of the contradiction. |
It can be seen from the above table that, in recent cases, most of the experimental data filed for proving inventiveness are rejected in the end. The main reasons are as follows: as mentioned above, the examiner follows the principle recited in the examination guidelines revised in 2017: “The technical effect proved by the supplementary experimental data should be obtained from the contents of the patent application disclosure by the technicians in the technical field”. Generally, the supplementary experimental data is to distinguish the patent from the reference document, and to prove that the technical solution of the patent has particularly excellent effect. Because technical effects are usually not recited or mentioned in the original application, most of the supplemented experimental data are finally rejected. On the contrary, if the technical effect has been fully recited in the original application, no additional experimental data is required to prove it.
To sum up, at present, no matter in proving full disclosure of the specification or proving inventiveness, the evidence requirements for the supplementary experimental data are high. Supplementary evidence is unlikely to be accepted due to lack of authenticity or that the evidence cannot establish the intended facts. Therefore, for chemical inventions, when drafting the original application, it is necessary to pay attention to full disclosure and to provide as many experimental data as possible to prevent the adverse consequences of invalidation of the patent caused by the failure to supplement experimental data afterwards.
Of course, the current examination status may also be improved due to the first phase of the economic and trade agreement signed by China and the United States. However, if the patentee wants to supplement experimental data, he should also try to meet the requirement of authenticity and prove that the evidence can establish the intended facts, so as to improve the possibility of being accepted.
Reference documents:
① (2014) Xingtizi No. 8 administrative judgment, April 16, 2015;
② Decision on request for invalidation No. 13582;
③ Decision on request for invalidation No. 39707;
④ Decision on request for invalidation No. 11858;
⑤ Decision on request for invalidation No. 12206;
⑥ (2011) Zhixingzi No. 86 administrative ruling;
⑦ Decision on request for invalidation No. 33591;
⑧ Decision on request for invalidation No. 34751;
⑨ Decision on request for invalidation No. 40433;
⑩ Decision on request for invalidation No. 41183;
⑾ Decision on request for invalidation No. 41183;
⑿ Decision on request for invalidation No. 41183;
⒀ Decision on request for invalidation No. 41183.
(Author: Ding Wenyun, legal department)
Story from Dragon IP
Reports from employees in Northeast China
Meng Xiangying, an employee of Process Department II of Dragon IP, lives in Hulunbuir, Inner Mongolia Autonomous Region. Due to the confirmed cases found in her hometown and the overall isolation measures taken to prevent the spread of the epidemic, she cannot return to Beijing at present. Here is her report from her hometown:
My family is located in Molidawa banner, Hulunbei City, the Inner Mongolia Autonomous Region. As of February 20, 2020, there are 7 confirmed cases and 6 suspected cases in Hulunbuir City, including 5 confirmed cases and 5 suspected cases in Moqi, with 39 people under centralized observation. At present, the confirmed cases have been transferred to Hulunbuir Second People’s Hospital for isolation treatment, and the suspected cases have been isolated, observed and treated in Moqi people’s hospital.
The epidemic is far worse than the SARS disaster. During the SARS period, our remote Inner Mongolia village was completely unaffected. The current epidemic happened during the Spring Festival. With the increase of returning people, it spread to all towns. I feel sorry for the villages and towns with confirmed cases, but at the same time, I am glad that there are no suspected cases in our village.
In order to effectively cut off the route of transmission, ensure the timely detection and control of infectious sources and avoid cross infection, at present, the whole Moqi residential area (Village) is completely closed for management. Visiting and gathering are strictly forbidden, so as to minimize the flow of people. No new guests are allowed in all catering service places and hotels of the whole flag, and take out enterprises are suspended. Taxis in the whole flag will be stopped, private cars will be stopped, streets and traffic lights will be subject to traffic control, all will be turned into red lights, and all recovery time will be notified separately.
Personnel and vehicles relating to epidemic prevention and control shall pass through the whole area with temporary pass and pass information form. All checkpoints of the whole region shall register people and vehicles with passes and measure their body temperature. City leaders and novel coronavirus pneumonia epidemic prevention work leading group also went deep into Moqi, so as to conduct on-site supervision of epidemic prevention and control work.
Due to the large proportion of confirmed cases compared with other areas in Hulunbuir City, traffic control is particularly strict. People are set up at the intersection of villages and villages. Our village secretary, village head and village cadres take turns to stand guard.
Notices about novel coronavirus pneumonia, residents’ daily precautions and positive banners to face the epidemic are stuck at the head of the village bridge. The village secretary went door-to-door three times for epidemic investigation and registration. People returning to the village from other places have their body temperatures measured and registered and are informed not to go out for 14 days. The details of where they come from, train number and date of return are registered. The village head drove from door to door to deliver rice, flour, grain and oil to ensure food supply.
This sudden outbreak makes the originally quiet village even more silent. The empty streets and the closed doors of neighbors also make people more depressed and fidgety. Villagers can only hide at home and communicate with each other through Wechat. But I believe that when spring comes, the epidemic is over and the spring flowers are blooming, it will be a busy planting season in our village.
Stranded in hometown by the epidemic and not being able to return to Beijing is upsetting, but I also feel confident with the reduction of confirmed cases and seeing the tremendous efforts from all levels of the society. I feel fortunate that my families and friends are all healthy. After the outbreak, we still have chance to strive for what we want. Adapt to what has happened, never worry about the future, do what is in front of you, and don’t cling to what can no longer change.
(Source: Meng Xiangying, Application Department II)
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