The provisions of intellectual property rights are not included in the civil code separately.
In order to strengthen the protection of intellectual property and improve the cost of infringement, the punitive compensation provisions for intellectual property are introduced into the civil code as follows:
Article 185. [Punitive compensation for infringement of intellectual property rights] In case of intentional infringement of another person’s intellectual property, if the circumstances are serious, the infringed shall have the right to claim corresponding punitive damages.
(Source: Sohu)
Representatives of the people’s Congress and experts discuss the draft amendment of copyright law, network copyright is concerned
On April 26, the draft amendment to the copyright law was submitted to the 17th session of the Standing Committee of the 13th National People’s Congress for deliberation. This is the third revision of the current copyright law since it came into force in 1991. A few days ago, representatives to the National People’s Congress and intellectual property experts made their own opinions and suggestions on the draft.
Representatives of the National People’s Congress and intellectual property experts welcomed the new draft amendment to the copyright law, which provides stronger protection for Internet copyright and stricter punishment measures for infringers. At the same time, it is suggested to further study and formulate new laws and regulations on Internet infringement.
Li Rui, member of the Standing Committee of the National People’s Congress, said that the current copyright law can no longer adapt to the new situation and problems of China’s economic development, scientific and technological innovation and cultural prosperity, and urgently needs to be revised.
The opinions of Li Rui are the same as those of the Standing Committee of the people’s Congress. The Standing Committee of the people’s Congress is considering the draft amendment to the copyright law submitted at the end of last month.
Li Rui said that the current law has been in force for 30 years and has played an important role in encouraging innovation and protecting copyright. However, after two amendments in 2001 and 2010, the law has not been able to provide legal support for the new network copyright, let alone solve the related disputes.
According to data released by China Internet Network Information Center last month, by March 2020, the number of Internet users in China was 904 million, an increase of 75.08 million compared with the end of 2018.
With the rapid growth of Internet users, the number of disputes related to intellectual property rights in China has increased, especially copyright disputes.
For example, from September 9, 2018 to March 31 of this year, the Beijing Internet court accepted 42,121 intellectual property cases, of which more than 99% were copyright cases.
Liu Xiuwen, member of the Standing Committee of the National People’s Congress, said that there are some new problems in the Internet and information age. For example, how to protect the copyright of the live broadcast platform and whether the “works” produced by robots or artificial intelligence belong to the works are controversial, and there is no clear explanation in the current draft. This requires further study and timely improvement of the draft.
(Source: China Daily)
Beijing Treaty on audio-visual performance comes into force
China Daily, April 28 (Xinhua) - the Beijing Treaty on audiovisual performances (hereinafter referred to as the Beijing Treaty), the first international intellectual property treaty concluded in China since the founding of new China and named after China’s cities, came into force today.
The Beijing treaty was concluded in Beijing on June 26, 2012. It is an international copyright treaty managed by the United Nations specialized agency, the world intellectual property organization, to protect the rights of performers. According to the entry into force clause of the treaty, it will enter into force three months after 30 member states ratify and accede to it. On January 28 this year, Indonesia became the 30th key member of the treaty, and the high-profile international copyright treaty came into force on April 28, that is, today.
The conclusion and entry into force of the Beijing treaty will comprehensively improve the level of protection of performers’ rights by the international community. It is possible to fully protect the rights of audio-visual performers, further stimulate their creative enthusiasm, enrich spiritual and cultural products, promote the healthy development of audio-visual industry, protect traditional culture and folk literature and art, and promote the development of cultural diversity. Mr. Gao Rui, director general of the world intellectual property organization, highly praised the Beijing treaty as an important milestone of international intellectual property protection.
(Source: China Daily)
In 2020, the promotion plan of intellectual property power will completely cancel the subsidies and rewards for utility model, design and trademark application and registration
The office of the inter-ministerial joint meeting on the implementation of the intellectual property strategy of the State Council prints and distributes “The plan to deeply implement the national intellectual property strategy and accelerate the construction of a strong intellectual property country in 2020”. It is mentioned that “strengthening the quality orientation of intellectual property” forms a long-term mechanism to crack down on abnormal patent applications and malicious trademark registration and hoarding. The local governments are promoted to eliminate subsidies and rewards for utility models, designs and trademark applications. (Intellectual Property Office is responsible for these tasks)
It is necessary to gradually establish a system for the disclosure of scientific and technological achievements in colleges and universities and a pre-appraisal system for patent applications, stop funding awards for patent applications, and substantially reduce and gradually cancel awards for patent allowance. Inventors or teams may be rewarded by “post-subsidy” methods such as increasing the percentage of conversion revenue. In policies such as job title promotion, performance appraisal, job appointment, project conclusion, talent evaluation and scholarship evaluation, it is strictly forbidden to simply take the amount of patent applications and allowance as the assessment content; it is necessary to increase the weight of patent conversion performance. (Ministry of Education, Intellectual Property Office, and Ministry of Science and Technology are responsible for these tasks)
(Source: Sohu)
The State Council of the CPC Central Committee: strengthen the protection of business secrets and improve the protection system of intellectual property
The State Council of the CPC Central Committee issued the opinions on accelerating the improvement of the socialist market economy system in the new era (hereinafter referred to as the “opinions”).
In the opinions, it is clearly pointed out to improve and refine the rules and regulations on the creation, application, transaction and protection of intellectual property rights. It is necessary to accelerate the establishment of a punitive compensation system for intellectual property infringement, strengthen the protection of business secrets, and improve the protection system for intellectual property rights in new fields and new formats.
The opinions pointed out that we should improve the system and mechanism to encourage and support basic research and original innovation. We will appropriately advance the layout and construction of major national science and technology infrastructure in key areas, study and establish a diversified investment mechanism for the construction and operation of major science and technology infrastructure, and support private enterprises to participate in the core technological innovation in key areas.
In addition, for how to continuously optimize government services, the opinion emphasizes innovation in administrative management and service, and carrying out “Internet plus government services” to speed up the construction of the national integrated government service platform. Efforts should be made to establish and improve the rules and regulations for administrative management by using Internet, big data, artificial intelligence and other technical means.
(Source: semiconductor investment alliance)
It took three years for Gree to win! Oaks was sentenced to malicious infringement and compensated 40 million
The litigation of Gree against Oaks for infringing patent rights, which lasted more than three years, has finally settled in recent days.
The ruling issued by China Judgment Documents Network on April 20 showed that the Guangdong Provincial Higher People’s Court found that Oaks’ malicious infringement was established and sentenced Oaks to compensate Gree Electric Appliance with RMB 40 million.
In January 2017, Gree Electric sued Ningbo Oaks Air Conditioning Co., Ltd. and Guangzhou Jingdong Trading Co., Ltd. The cause of the case is: Gree owns the patent right for the utility model patent of the patent number ZL200820047012.X, “an indoor unit of an air conditioner”. Eight air conditioners models (including KFR-35GW/BpTYC1+1) manufactured, sold and promised to sell by Oaks repeatedly and maliciously infringe the patent rights of Gree; Jingdong Company infringes Gree’s patent rights by implementing relevant sales activities. Gree requests to order Oaks to stop infringement, destroy inventory and mold, and compensate 40 million yuan.
On April 20, 2018, the Guangzhou Intellectual Property Court made the first instance judgment. The court held that the plaintiff was the patentee of the utility model involved in the case, its legitimate rights and interests should be protected by law, and the evidence it had initially provided could reflect the profit of Oaks’ infringement. However, the account books and materials for the profit of the product sued are mainly controlled by Oakes. The court ordered Oaks to submit the financial books within a time limit. However, Oaks explicitly refused to provide the original evidence on which the statistical data was based. The court held that Oaks should bear the burden of obstruction of proof.
The court held that Oakes disregarded national laws and effective judgments, and made use of substantially the same technical scheme to infringe the same patent right repetitively with obvious subjective intentions. Considering the subjective intentions and profit of Oaks comprehensively, infringement compensation should be increased to show the deterrent effect on serious infringer. Gree’s claim for compensation of 40 million yuan did not exceed a reasonable limit and it is supported.
On August 30, 2019, the Higher People’s Court of Guangdong Province made a second-instance judgment, upholding the original judgment of the first instance and determining that Ningbo Aosheng Trading Co., Ltd. (formerly Ningbo Aox Air Conditioning Co., Ltd.) was established for malicious infringement.
(Source: Tencent.com)
The claim amount is up to 5 million yuan! Litigation for CNC equipment used in smartphone cover processing
Introducing new mobile phone screens is a key link in the evolution of mobile phones, and the production of mobile phone screens is inseparable from the CNC equipment for mobile phone cover processing. Recently, a patent infringement lawsuit involving up to 5 million yuan in compensation involving CNC equipment for smartphone cover processing has ushered in a first-instance judgment.
Shenzhen Intermediate People’s Court of Guangdong Province (hereinafter referred to as Shenzhen Intermediate People’s Court) made the first instance judgment on the dispute of Hallys Corporation (hereinafter referred to as Hallys Corporation) against Shenzhen Dayu Jingdiao Technology Co., Ltd. (hereinafter referred to as Dayu Jingdiao Company) for invention patent infringement. It was determined that Dayu Jingdiao Company had infringing activities, and it was necessary to compensate Hallys Corporation for the economic loss of 800,000 yuan, and to destroy the patent infringing product and the special equipment and mold for manufacturing the product. It is understood that the defendant has filed an appeal.
(Source: China Intellectual Property News)
Dragon Special Report and Agency Practice
The application of unexpected technical effects in the inventiveness argument of invention patents in the field of chemistry
- Introduction
6.3 of Chapter 4 of Part II of the Guidelines for Patent Examination stipulates “If the invention has an unexpected technical effect compared with the prior art, then it is no longer necessary to doubt whether its technical solution has prominent substantive features, and it can be determined that the invention is inventive.” That is to say, if the invention produces unexpected technical effects, it also shows that the technical solution of the invention is not obvious, so there is no need to discuss whether the invention is obvious.
In the field of chemistry, such as compounds, compositions, chemical methods, and other invention patents, it is sometimes difficult to argue inventiveness from the perspective that the prior art does not provide technical teaching. Therefore, the unexpected technical effect of the invention has become a commonly used answering strategy in the inventiveness argument of invention patents in the chemical field. Especially for compound inventions, the provisions of 6.1 Chapter 10 of Part II of the Guidelines for Patent Examination stipulates that “For compound that is similar in structure to a known compound, it must have unexpected use or effect. The said unexpected use or effect may be use different from that of the known compound, the substantive progress or improvement of a known effect of a known compound, or a use or effect which is not clear in the common general knowledge or cannot be deduced from the common general knowledge.”
The chemical field is highly unpredictable compared to the technical fields such as machinery and electricity. Therefore, for invention patents in the chemical field, it is usually necessary to rely on comparative experimental data to confirm whether the invention has unexpected technical effects. The comparative experimental data may be the experimental data recited in the description, or may be comparative experimental data supplemented at the stage of examination (including substantive examination and reexamination), invalidation stage, or allowance and confirmation stage.
This article discusses the application of unexpected technical effects in the inventiveness argument of invention patents in the chemical field.
- Application strategies for unexpected technical effects
5.3 of Chapter 4 of Part II of the Guidelines for Patent Examination stipulates that: An invention produces an unexpected technical effect means that, as compared with the prior art, the technical effect of the invention represents a “qualitative” change, that is, new performance; or represents “quantitative” change which is unexpected. Such a qualitative or quantitative change cannot be expected or inferred by the person skilled in the art in advance.
In other words, the “unexpected technical effect” can be explained from two aspects of “qualitative change” and “quantitative change”. For both “qualitative change” and “quantitative change”, whether it is an unexpected technical effect should be judged according to the general knowledge of a person having ordinary skill in the art, that is, those skilled in the art cannot subjectively recognize that the invention can achieve such effect.
In the following, the author specifically analyzes the application strategies of unexpected technical effects in inventiveness argument in combination with cases, and further provides some general ideas for the design of comparative experiments.
- When clarifying the unexpected technical effects from the perspective of producing “qualitative changes”, the new performance produced by the invention should not be related to the technical effects recited in the comparison documents, nor the inherent performance of the technical feature. Therefore, those skilled in the art cannot expect the invention to produce this new effect.
Case #1:
Claim 1 of the present application relates to a non-aqueous electrolyte for a lithium ion secondary battery, which comprises:
(A) Methanesulfonic anhydride;
(B) Methylene ethylene carbonate compound.
D1 discloses the technical solution of the combination of methanesulfonic anhydride and ethylene carbonate compound as a non-aqueous electrolyte additive. Besides, methylene ethylene carbonate is a kind of common ethylene carbonate compounds. Therefore, the examiner believes that based on D1, it is very easy for a person skilled in the art to specifically select a methylene ethylene carbonate compound among the ethylene carbonate compounds for use with methanesulfonic anhydride; its technical effect is objectively inevitable.
The applicant believes that “unexpected technical effect” should be judged based on the subjective cognitive ability of the technical personnel in the technical field. “Objectively must be achieved” does not mean that the effect can be expected. The technical solution of claim 1 of this application is to use methanesulfonic anhydride together with a methylene vinyl carbonate compound selected from ethylene carbonate compounds; the effect is to “reduce battery impedance.” D1 discloses an example of using methanesulfonic anhydride in combination with ethylene carbonate compounds, but does not disclose that their combination can reduce the battery impedance; there is also no evidence that it is common knowledge in the art to use methanesulfonic anhydride and ethylene carbonate compounds to achieve the effect of “reducing battery impedance”. Therefore, the technical effect of “reducing battery impedance” achieved by the present invention is unexpected by those skilled in the art.
- When clarifying the unexpected technical effects from the perspective of “quantity change”, the technical effects of the invention should be compared with the technical effects of the prior art. It is necessary to confirm that the technical effect of the invention has changed beyond the level that those skilled in the art can expect based on the generally recognized change trend. Generally speaking, if the technical effect of the invention makes a difference in order of magnitude compared with the technical effect of the prior art, it can be considered that the technical effect is unpredictable. However, the “quantity change” does not necessarily depend on the difference in order of magnitude, and it needs to be judged in accordance with the general knowledge of those skilled in the art.
Case #2:
Claim 1 of the present application relates to a compound having a general structure, which differs from D1 only in: The compound of the present application is linked to O at the 6-position of purine, while D1 is linked to NH at the 6-position of purine.
The examiner believes that -O- and -NH- are isosteres of bioelectronics, and the structures of the two are similar. In order to obtain more compounds with similar structures and the same activity, those skilled in the art have an incentive to replace -NH- with other bioelectronic isosteres.
In this regard, the applicant provided comparative experimental data, comparing the compound of Example 43 of this application with the compound 26 of D1. The structural difference between the two is only that the former has a -O-cyclopropyl group at the 6-position of purine and the latter has a -NH-cyclopropyl group at the 6-position of purine. However, the difference between the two on the activity of various cancer cells is at least 4 times, especially the compound of Example 43 of the present application is about 40 times stronger than the compound 26 in inhibiting the growth activity (GI50) of cancer cells in the HCT-116 cell line. This difference in activity is also manifested in many other cancer cells. Moreover, the comparison between Examples 8 and 12 and between Examples 44 and 50 of this application further confirmed that the substitution of -NH- at the 6 position of purine with -O- can indeed increase the activity of inhibiting the growth of cancer cells. This increase in activity cannot be expected by applying the electronic isosteric theory directly to D1 at the filing date. Therefore, claim 1 of the present application has an unexpected technical effect as compared with D1.
- In invention patents in the field of chemistry, unexpected technical effects often need to be proved by comparing experimental data. Designing persuasive comparative experiments is very important to prove unexpected technical effects. Specifically, the selection of the comparison object in the comparison experiment should be conducted around one or more technical effects recited in the invention. Moreover, the technical effects involved in the comparative experiment should be achievable within the entire scope claimed by the invention. Only selecting the best technical effect within the scope of protection of the claims to compare with the prior art, or only selecting the worst technical effect in the prior art to compare with the claims, cannot prove that the invention has unexpected technical effects.
Case #3:
Claim 1 of the present application relates to a fumaric acid complex or salt of a nucleotide analog bis(isopropoxycarbonyloxymethyl) PMPA (Bis(POC)PMPA) having a general structure. Moreover, the description emphasizes that the fumarate of Bis(POC)PMPA has the unexpectedly best physicochemical properties and good oral bioavailability compared to the free base and other salts.
D1 discloses the specific structure of Bis (POC) PMPA, and D2 gives the technical teaching of the salt formation of nucleotide phosphate derivatives with organic acids, wherein the organic acid may be fumaric acid. Therefore, the examiner believes that the invention of the present application is not inventive compared to the combination of D1 and D2. Based on this, whether the fumarate of Bis(POC)PMPA has an unexpected technical effect has become the key to inventiveness argument.
However, regarding the technical effect of “good oral bioavailability”, the description does not give any examples or experimental data to prove. On the other hand, regarding the technical effect of “the fumarate has the unexpectedly best physical and chemical properties compared to the free base and other salts”, only Example 3 in this specification compares the solid-state chemical stability of Bis (POC) PMPA fumarate crystals with Bis (POC) PMPA citrate. The object of comparison is only the salt of citric acid, and according to the information disclosed in the specification of this patent, there is no reason to choose citrate for comparison. Because of the single comparison object, such a comparison cannot conclude that fumarate has the unexpectedly best physical and chemical properties compared to free base and other salts.
- Summary
For the “unexpected technical effect”, whether to argue from the perspective of “qualitative change” or “quantitative change”, the standard of judgment should be whether the effect exceeds the level that can be expected by those skilled in the art based on common knowledge, not whether the effect is necessarily achievable.
In addition, for invention patents in the field of chemistry, simply explaining that the invention has unexpected technical effects is usually not convincing, and often needs to be proved by comparing experimental data. Furthermore, whether it is the comparative experiment data recited in the specification, or the comparative experiment data submitted in the reexamination stage, invalidation stage, or allowance and confirmation stage, it is necessary to, on the basis of fully understanding the general knowledge of those skilled in the art in the prior art, through a sufficient amount of comparison experiments with obvious differences, to prove that the technical effect in the entire scope claimed by the invention exceeds the level that can be generally expected by those skilled in the art.
(Author: Bo KONG, patent attorney)
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