2024 Issue No. 3 of the magazine China Patents & Trademarks has published, in the original and in translation, an article titled Judgment Essentials (2023) Released by the IP Court of the Supreme People’s Court (I) (English version at pp. 91-99). According to the article, the IP Court of the Supreme People’s Court has “selected 96 typical cases from 4,562 cases concluded in 2023, and summarized 104 rules therefrom.” The article, which is part 1 of a two-part series, lists 58 of these (all the patent cases), including a few relating to remedies and also to wrongful patent assertion. You can also access the entire list, which also includes summaries of cases on plant varieties, trade secrets, and some other matters in a different translation by Aaron Wininger on the Schwegman firm's website here.
The case summaries of most relevance to this blog are:
Case 40, Zuigaofazhiminzhong 1584/2022, in which the court held that, for purposes of calculating damages, where the patented article is not on public sale, “the products that are related to the implementation of the patented technical solution and mostly associated with the acquisition of market benefits can be taken as a reference for calculating damages on a case-by-case basis.”
Case 41, Zuigaofazhiminzhong 2480/2021, in which the court held that an infringer’s dishonest actions, including making false statements during litigation, “can be taken into account . . . in the determination of reasonable expenses for safeguarding the rights of the right holder.”
Cases 42, 49, 50, and 51, Zuigaofazhiminzhong 235/2023, 1353/2021, 2586/2022, and 1861/2022, all address one form or another of wrongful assertion, including abuse of IP rights and malicious IP litigation. The former proceeds from the principle that IP rights must be “enforced under the principle of good faith and . . . not harm others’ legitimate rights and interests.” This sounds similar, to me, to the abuse of rights doctrine that one encounters in other civil law jurisdictions, and is a topic I will be taking up in chapter 6 of my forthcoming book on wrongful assertion. The case references the “Reply of the Supreme People’s Court on the Issues Concerning the Claim of the Defendant for Compensation for Reasonable Expenses in Intellectual Property Infringement Litigation on the Grounds of Plaintiff’s Abuse of Rights,” which I shall endeavor to obtain a copy of. The other three cases address situations in which the patentee knows that the suit has no legal or factual basis, or induces others to infringe so that it can then affect their operations, or knows the patent has terminated.
Case 43, Zuigaofazhiminzhong 1744/2022, addresses how a court should proceed in a suit for a declaration of non-infringement, where the patentee’s “warning notice does not specify a particular product.”
It appears there is some overlap between the cases listed above and another list of "41 legal application issues from the intellectual property cases concluded by the Supreme People's Court in 2023," provided by Mr. Wininger on China IP Law Update a few months ago. This one includes some cases on trademarks and trade secrets as well, including one each on damages issues.
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