1. Judge Chen Huizhen of the Shanghai Intellectual Property Court has published an article titled Resolving the Compensation Issue in IP Infringement Judicial Practice in the June-July 2018 issue of China IP Magazine (pp.78-82) (translated into English by Yuan Renhui). Here is the abstract:
Since it was established, regarding the difficulties incurred by litigators in receiving their compensation for intellectual property infringement, Shanghai Intellectual Property Court has actively and strictly implemented the judicial policies to protect intellectual property, carefully studied the causes to these difficulties, and steadily and effectively used litigation holds. It has provided strong support to the solution of the issue by considering the seriousness of the fault of the infringer, in combination with the rules on hindrances to evidence admission and on statutory compensation. It has thus strengthened the protection of intellectual property rights.
The author goes on to discuss, among other matters, evidence preservation orders in the SIPC; the ability of Chinese courts to award statutory damages exceeding the statutory maximum of RMB500,000, where warranted; and the SIPC's efforts to award reasonable costs to the prevailing IP owner. The author concludes with a brief discussion of the availability of punitive damages in trademark cases. The statute expressly permits them for malicious infringement, but the meaning of this term is still evolving.
On this last note, the March-April 2018 issue of the magazine published an article by Yuan Li, titled How to Claim Punitive Damages in Trademark Infringement in China: Interview with Mr. Minjian You, Founding Partner of Co-effort Law Firm (pp.72-75). This one is available online, here.
2. Also in the June-July issue is an article by Judge Zhu Jianjun of the Shenzhen Intellectual Property Court, titled To Establish FRAND Negotiation Mechanism of Standard-Essential Patent (pp.83-85) (also translated by Yuan Renhui). Here is the abstract:
Standard-essential patent (SEP) is of great significance for any wireless communication company and the country where the company is located. The SEP technology is the most valuable technology among all technologies contained int he patent. The larger number and higher quality of the SEP are owned by a wireless communications company, the stronger advantageous competition may be established by it in the international and domestic wireless communication market.
The author advocates the establishment of "an ex ante prevention mechanism to prevent the occurrence of SEP disputes," on the basis of which the "parties can negotiate in good faith with clear rules and systematic constraints so that a patent license agreement on SEP can be reached and concluded in a timely manner."
3. Xianlin Wang has published a paper titled Anti-Monopoly Regulations on the Abuse of Intellectual Property Rights in China in the August-September 2018 issue of GRUR Int. (pp. 761-66). Here is the abstract:
As China continues to strengthen IPR protection, it is also exploring means to regulate the abuse of IPRs. At present, the regulation of the abuse of IPRs is mainly based on the Art. 55 of the Anti-Monopoly Law of P.R.C. (2007). Some cases of civil actions as well as administrative enforcement against monopoly concerning IPR happened in China and investigations and rulings of them have received wide-spread attention from abroad and at home. The Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Eliminate or Restrict Competition (SAIC, 2015) established the more concrete legal rules for regulating abuse of IPRs currently. China's Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights will be published as soon as the integration of anti-monopoly enforcement agencies has completed recently.
The author quotes article 13 of the aforementioned Provisions, which states, inter alia, that "[w]ithout justifiable reasons, an undertaking with a dominant market position shall not, in the course of setting and implementing standards, engage in any of the following conducts that eliminate or restrict competition . . . after its patent has become a standard essential patent, in violation of the fair, reasonable, and nondiscrimination principle, applying any conduct which eliminates or restricts competition, such as refusing to license, tying products or imposing other unreasonable trading conditions."
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