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China Responds to EU Article 63 Request 2021-09-13
  On September 7, 2020, China responded to the EU Article 63 request.   The one-page Chinese response repeats the position taken by China in 2006, that Article 63 only affords an opportunity for a member to make a transparency request of another member. As China notes in its response, “there is no such obligation under the TRIPS Agreement for China to respond.” This position repeats the position taken by China that “the TRIPS Agreement only refers to a Member’s right to request information, but there is no mention of a corresponding obligation of the requested Member to actually follow the request.” (Para. 8, P/C/W/465, Jan. 23, 2006). The Chinese responses might be understood as rejecting a teleological interpretation of the TRIPS Agreement to effectuate its purposes, or one based on the good faith of the parties, as it is difficult to conceive of the reason for a treaty provision that offers an opportunity to make an inquiry of another country, but does not require that country to respond.   Generally speaking the WTO has considered the term “general application” in the WTO agreements to mean having application beyond the specific parties. The Chinese view, however, is that the various types of cases “mentioned in the EU communication are cases for reference and have no legal effect of general application” (para. 4, emphasis supplied). However, “legal effect” is not a term found in Article 63. By contrast the Chinese submission identifies the function of the cases sought by the EU as as “summarizing trial experiences, strengthening publicity of the rule of law and providing references for judicial practices and legal education.” This should satisfy the the test of what constitutes “general application”, i.e., application beyond the parties in suit.   Assuming, for the sake of argument, that the test were one of “legal effect”, China’s experiments with using cases to provide greater consistency in decision making have generally helped guide both foreign and domestic litigants and should satisfy such an expanded “general application” test. One significant effort involves China’s “guiding” or “leading” cases. It had been the focus of a widely-supported project at Stanford University, which also involved Chinese lawyers and scholars. Another project was undertaken at the Beijing IP Court in 2016, which resulted in citation of 279 case precedents of various types in 168 cases. Guiding cases have also been used by the courts to help guide lower courts and rightsholders in complex areas of intellectual property, such as in determining how to determine essentially derived varieties in plant variety cases.   Beyond “guiding cases”, the Chinese typology of different types of reference cases is complicated, and may involve different levels of internal review and consequential impact. The types of cases are subject to a range of policy documents by China’s Supreme People’s Court, as detailed (for example) in this Chinese language article. Whatever the distinction among these various types of reference cases, all of these cases offer useful reference points in considering similar cases whether or not they might be cited in a legal brief, a court opinion, an oral argument, considered in judicial deliberations, or reviewed by the general public when it considers the legal implications of a course of conduct. Their significance may vary by the nature of the nature of the typology applied to them, but their “general application” remains constant.   What is perhaps most surprising is what is not included in the docket thus far: an inquiry of the United States supporting the EU’s position regarding publication of cases by China. During the Obama administration, the US government had expressed considerable interest in China’s development of guiding cases and precedent. Moreover, the Article 63 mechanism had originally been advanced by the United States in an earlier WTO dispute with China.
The 23rd China Patent Award Selection Launches 2021-09-13
  Recently, the 23rd China Patent Award Selection co-organized by CNIPA and WIPO is under way. Awards include China Patent Gold Award, Silver Award and Excellence Award, as well as China Design Gold Award, Silver Award and Excellence Award, in a bid to encourage and cite those patentees and inventors who contribute significantly to technology (design) innovation and socio-economic development.   The patent gold, silver and excellence awards will be selected from inventions and utility models with the total number of gold awards not exceeding 30 and silver not 60. The design gold, silver and excellence awards will be chosen from designs with gold items not surpassing 10 and silver not 15. The event adopts the way of project recommendation and highlights the principle of high-quality development, giving priority to the core patents in basic research, basic research for application and key and core technological breakthroughs. Relevant departments under the State Council, local intellectual property offices and national industry associations can select and recommend prominent projects to the Award Committee. Since 2021, associations that fail to win prizes in two consecutive sessions of the event will be suspended from the qualification for recommendation for one year.   This year's selection further highlights high-quality development. CNIPA will decrease the number of candidates in areas with serious patent quality problems, and organizations and individuals with a large number (proportion) of abnormal patent applications will be disqualified from application, recommendation, participation or award winning. According to the awards of the recommended projects, CNIPA will select 5-8 winners of the Best Organization Award and 15-20 winners of Excellent Organization Award of China Patent Award, and give the Best Recommendation Award of China Patent Award to academicians whose recommended projects win the China Patent Gold Award.   Previous sessions have witnessed an increasing number of recommended projects, which were all high-quality and created significant social and economic benefits. For example, the 21st China Patent Award last year focused on core technologies in key industries and fields and highlighted the pillaring role of manufacturing industry. Data showed that 62% of the 766 award-winning invention patents were from the emerging sectors of strategic importance, and 83% were from the IP- or patent-intensive industries. 40 of the award-winning projects had created RMB 660 billion yuan of new sales revenue, RMB 62.9 billion yuan of new profits, and RMB 136.3 billion yuan of new amount of exports.
China’s National Intellectual Property Administration Releases Patent Agency Industry Status Report (2020) 2021-09-01
  On August 27, 2021, the China National Intellectual Property Administration (CNIPA) released a report entitled Development Status of the Patent Agency Industry (2020). According to the report, as of the end of 2020, the number of Chinese patent practitioners has reached 53,090, among which 23,193 are practicing patent attorneys, and there are 3,253 patent agencies (excluding Hong Kong, Macao and Taiwan).   Patent Agencies   As of the end of 2020, there were 3,253 patent agencies in China (excluding Hong Kong, Macao and Taiwan). From 2011 to 2012, the number of patent agencies across China increased steadily, with 43 newly added that year. In 2013, the number of agencies nationwide was close to 1,000, and the number of patent agencies began to show a significant growth trend. Since 2013, more than 100 agencies have been added every year. Beginning in 2016, the number of patent agencies has entered a stage of rapid growth, with an annual growth rate of more than 20%, and the growth rate in 2019 compared with 2018 reached 22.7%. As of the end of 2020, the total number of patent agencies has reached 3,253. Compared with 2019, the number of agencies has increased by more than 500, with an annual growth rate of 20.9%; compared with 2011, it has increased by 2,387, an increase of 276%.   In terms of geographical distribution, patent agencies are mainly distributed in Beijing, Guangdong, Jiangsu, Zhejiang and Shanghai. Generally, patent agencies are distributed throughout the east and coastal economically developed areas, and the regional distribution is basically proportional with the number of patent applications in originating from these provinces and cities.   There are more than 220 patent agencies older than 20 years and another 755 agencies older than 10 years.   Patent Attorneys (Agents)   As of the end of 2020, China had 23,193 practicing patent attorneys. This implies that each patent attorney was responsible for drafting and filing, on average, 63 inventions patent applications, another 126 utility models, and another 33 design applications based on total 2020 filings listed in CNIPA’s annual report for 2020.   In the past ten years, the number of people who have obtained patent attorney qualification certificates in China has shown a rapid growth trend. From 2011 to 2015, the number of people who obtained patent attorney qualification certificates increased rapidly. The average annual growth rate from 2011 to 2012 was about 13%, and from 2013 to 2015 it increased to about 23%. Among them, those who obtained patent attorney qualification certificates in 2011 numbered 12,991, and it exceeded 20,000 for the first time in 2014. After 2015, the growth rate has slowed slightly, but it still increases with a trend of more than 5,000 new people every year. As of the end of 2020, a total of 53,090 people have obtained patent attorney qualification certificates, an increase of 5,172 people, an annual growth rate of 10.7%.   Chinese Patent Bar Exam   The Patent Attorney Qualification Examination has been successfully held 22 times since 1992. In 2020, a total of 45,241 people registered for the examination, and 7,382 people passed the examination to obtain the qualification of patent agent, yielding a pass rate of about 16.1% compared to a U.S. patent bar pass rate of 48.9% in 2020.   The number of applicants for the Patent Attorney Qualification Examination has been increasing annually in contrast to the 51% decline in the U.S. from a peak in 2012. In 2020, the number of applicants for the Chinese Patent Attorney Qualification Examination reached yet another new high.   The number of applicants passing the National Patent Agent Qualification Examination has been increasing annually. From 2012 to 2014, the number of applicants that passed increased rapidly. Since 2015, due to the continuous increase in the number of applicants combined with the increase in the overall difficulty of the exam, the number of passing applicants has only increased slightly.   Since 2004, residents of Hong Kong Special Administrative Region and Macao Special Administrative Region are allowed to take the qualification examination for patent agents in China. In 2011, the examination was opened to residents of Taiwan. As of 2020, a total of 71 candidates from the Hong Kong Special Administrative Region, one candidate from the Macao Special Administrative Region and 525 candidates from the Taiwan region have passed the exam. Since 2021 foreigners have been allowed to take the patent bar exam and statistics on foreigners may be released in next year’s report.
Apple Officially Beats $308.5 Million Patent-Infringement Verdict 2021-08-22
  Judge Rodney Gilstrap, who Law 360 has identified as “the country’s single busiest patent judge,” just recently overturned the more than $300 million fine that a jury ordered Apple to pay about five months ago. The underlying courtroom confrontation initiated back in 2015, when Sugar Land, Texas’s Personalized Media Communications (PMC) accused the Cupertino-headquartered company of infringing upon multiple patents with the aforementioned FairPlay in the iTunes Store.   For reference, PMC “has been issued 101 patents as of April 22, 2020 from the 1981 and 1987 specifications,” according to legal documents, with this original pair of 1980s patents forming “the universe of PMC’s patent disclosures.”   Apple took aim at said patents' validity before the USPTO’s Patent Trial and Appeal Board – which ultimately decided in the iPhone designer’s favor – and it appeared for a time that the legal battle would conclude. But an appellate court in 2020 overturned part of the decision, setting the stage for a five-day trial. Jurors then deliberated for just four or so hours, legal documents show, before determining that Apple should be made to pay nearly one-third of a billion dollars for the alleged patent infringement.   Apple higher-ups promptly criticized the verdict in a widely circulated statement – “Cases like this, brought by companies that don’t make or sell any products, stifle innovation and ultimately harm consumers” – and signaled their intent to appeal. And as initially mentioned, Judge Gilstrap, following a June 22nd bench trial, has now tossed the ruling as well as the associated penalty.   In brief, the judge explained his decision by noting that one of the plaintiff’s key figures had previously stated while under oath “that PMC’s strategy was to pursue one patent application at a time and wait until it issued before pursuing the others,” partially “so that the seventeen-year patent term would start as late as possible.   “PMC internal documents corroborate this strategy and its purpose,” the judge continued, with Apple having been “specifically identified” in a September of 1991 internal document “as one of several ‘companies that are natural candidates for participating in the commercialization of PMMC’s technologies.’   “PMC’s stated plan in the early 1990s was to prosecute applications serially and obtain patent protection far in excess of the statutory term,” Judge Gilstrap proceeded. “Apple has presented clear and convincing evidence of an unreasonable and unexplained delay, similar in length to delays previously held to constitute laches.”   PMC’s patent no. 8,191,091 is “unenforceable for reason of prosecution laches,” the judge reiterated in his final judgement.According to the USPTO, “while there are no firm guidelines for determining when laches is triggered, it applies only in egregious cases of unreasonable and unexplained delay in prosecution.”   Consequently, Judge Gilstrap wrote in his judgement that PMC “shall take nothing,” and that Apple “is the prevailing party in this case and shall recover its costs from PMC.” Additionally, the judge denied “all other relief requested by either party and now pending” and ordered the clerk to close the case.   Last month, Apple quickly settled a copyright infringement lawsuit over the use of a song in its Amazing Stories anthology series, and the German government’s Federal Cartel Office in late June launched an antitrust probe into Apple’s App Store.
Local IP Administrations Admits 13,800 Patent Infringement Cases in First Half of 2021 2021-08-22
  China's local IP administrations executed the administrative adjudication of patent infringement disputes steadily in the first half of 2021, with an eye on key spots of both online and offline areas, key links and crucial periods including the May Day and the Dragon Boat Festival holidays by consolidating resources which has evidently paid dividends. A total of 13,800 patent infringement cases were admitted in different provinces, with Zhejiang, Jiangsu, Guangdong, Shanghai, Sichuan, Fujian, Hebei, Beijing, Anhui, Henan and Shandong ranking at the front in the country.   The China National Intellectual Property Administration (CNIPA) issued the 2021 China Intellectual Property Administrative Protection Work Plan this March and deployed the work of strengthening administrative adjudication of patent infringement disputes in five aspects including improving the collection and sorting mechanism of patent disputes and strengthening the crackdown on patent infringements. Local IP administrations formulated implementation plans in accordance with the requirements to effectively promote patent administrative adjudication.   The CNIPA in the first half of this year identified Anhui, Fujian and other places as the second batch of pilot demonstration areas for administrative adjudication of patent infringement disputes on the basis of the first batch of pilot areas, encouraging the above areas to take the lead and make breakthroughs in advancing the administrative adjudication system and relevant work. Jointly with the Ministry of Justice of the People's Republic of China, the CNIPA also issued notices to publicize 13 typical experiences and practices emerging in Beijing and Hebei to further refine the administrative adjudication system and procedural rules by virtue of multiple platforms comprised of the China Intellectual Property News, the China Market Regulation News, CNIPA's official Wechat and website, striving to foster the sound competitive atmosphere.   Local administrations, such as Beijing, Zhejiang, Shanghai, Liaoning, Jiangsu, Anhui, Hubei, have taken measures to advance the work under the guidance of the Work Plan, which would achieve remarkable results. Six central provinces including Shanxi and Hunan, and 18 cities in Shanxi, Hebei, Shandong and Henan provinces respectively signed cooperation agreements for administrative protection, establishing the cross-regional cooperation team and building the cooperation mechanism for administrative adjudication's clue transfer, investigation and execution, joint law enforcement, mutual recognition and sharing. The CNIPA jointly with IP administrations in Hunan and Sichuan continues to advance the systematic capabilities of administrative adjudication by innovating online and offline methods to conduct special training for the backbones. Wuhan has formulated the patent administrative enforcement mechanism by issuing the Administrative Rules for Patent Administrative Rulings and Administrative Mediation Enforcement (Trial Version) to effectively advance the pilot work of constructing the demonstration area for patent administrative adjudication. IP administrations across the country strive to tighten the regulations of patent infringements, which gives full play to the administrative protection advantages and creates a sound climate for innovation and business.   In the next step, the CNIPA will further comprehensively strengthen the IPR protection and enhance the administrative adjudication in the field of IP infringement disputes in accordance with the requirements of the Central Committee of the Communist Party of China and the State Council. Centering on the development of the pilot demonstration, the CNIPA will coordinate its IP administrations to enhance the administrative adjudication of patent infringement disputes, strengthen the guidance and raise the capabilities of administrative adjudication among the whole system, which helps to serve the country's economic and social development and provide the solid guarantee for applying the new development philosophy and creating a new development pattern to enhance high-quality development.
China's IP Indexes Met the Expectations in the First Half of 2021 2021-08-02
  As we learned from the third-quarter regular press conference of the China National Intellectual Property Administration (CNIPA) on July 14, China's IP indexes met the expectations and the operation of the IP system was running smoothly. A group of statistics may epitomize the progress: In the first half of this year, 339,000 invention patents granted, 3.724 million trademarks registered, 87 geographical indications (GI) products determined, 254 GIs certified as collective trademarks and certification trademark, 7,629 certificates for layout designs of integrated circuits dished out, while patent and trademark pledge financing amounted to 107.4 billion yuan, up 25.9%.   Data also brings three prominent features into life: continuing uplift of IP examination operations, surefooted growth of domestic companies in possession of invention patents, mounting growth of granted or registered IPRs owned by foreign applicants.   According to Heng Fuguang, Deputy Director General of CNIPA's General Affairs Office, granted patents, trademarks, and layout design of integrated circuits all grew rapidly year-on-year, reflecting that Chinese market players became more active in innovation, creation and entrepreneurship, a result of a continuing, profound reform in streamlining administration, delegating power, improving regulation, and upgrading services as well as a result of improved IP examination and efficiency. As of the end of June, the pendency for examination of Chinese invention applications was shrunk to 19.4 months. The pendency for examination of higher-valued invention applications was shortened to 13.4 months. The average examination pendency for trademark registration was curtailed below 4 months.   Statistics show that in the first half of this year, the number of domestic companies housing invention patent has increased steadily. As of the end of June, there were 270,000 domestic companies owning valid invention patents, an increase of 24,000 from the end of the previous year. In the meantime, granted or registered IPRs of foreign interests continued their upward journey. In the first half of the year, 54,000 invention patents were granted to foreign applicants, up 30%; foreign applicants registered 90,000 trademarks in China, up 7.5%. "This shows that foreign companies have confidence in China's business environment and are willing to execute their business operations and IP plans in China," Heng said.   This year is the first year of the "14th Five-Year Plan". In order to start on a proper footing, CNIPA has vigorously promoted the high-quality IP development. According to Ge Shu, Director General of CNIPA's Strategic Planning Department, China's patent reserves in core technology fields have been continuously stocked. As of the end of June, among the valid invention patents in China's mainland (not counting in numbers of Hong Kong, Macao and Taiwan), the number of invention patents in strategic, emerging industries reached 731,000, up 53,000 from the end of the 13th Five-Year Plan period and the momentum for industrial innovation and development continued.   In the first half of this year, 13,800 cases of administrative adjudication of patent infringement disputes in various provinces (autonomous regions and municipalities) across the country were filed. The smooth development of this work is due to the newly revised Patent Law's newly-added "Patent Administration Department under the State Council can deal with patent infringement disputes that have a significant national impact at the request of patentees or interested parties", legislatively granting CNIPA a consolidated authority to deal with major patent infringement disputes.   In order to ensure the smooth implementation of this system, on May 31, CNIPA issued the "Administrative Adjudication Measures for Major Patent Infringement Disputes", which is conducive to further improving the handling of major cases, unifying the standards for determining infringement, and giving full play to the role of the patent administrative department under the State Council guiding and coordinating the national patent administrative protection work, and improving the patent administrative protection system.   At the press conference, Lei Xiaoyun, Director General of CNIPA's IP Utilization and Promotion Department, introduced that on June 16, CNIPA , China Banking and Insurance Regulatory Commission, and National Development and Reform Commission jointly issued the Action Plan for Conducting Pledge Financing at Industrial Parks to Benefit Enterprises (2021-2023), strive to achieve an annual increase of more than 20% in the number of pledge projects and financing amount in more than 100 industrial parks in three years and ensuring IP pledge financing benefiting hundreds of parks and ten thousand enterprises. Thanks to a series of related measures taken by CNIPA, the amount of IP pledge financing has grown rapidly.
Joint Release by WHO, WTO and WIPO: Directors General of WHO, WIPO and the WTO Agree on Intensified Cooperation in Support of Access to Medical Technologies Worldwide to Tackle the Covid-19 Pandemic 2021-08-02
  The Directors General of WHO, WIPO and the WTO, agreed to enhance their support to members battling the pandemic by collaborating on a series of workshops to augment the flow of information on the pandemic and by implementing a joint platform for tripartite technical assistance to member governments relating to their needs for medical technologies. As a result of their meeting on June 15, Tedros Adhanom Ghebreyesus, Daren Tang and Ngozi Okonjo-Iweala issued the following statement.   Directors General of WHO, WIPO and the WTO agree on intensified cooperation in support of access to medical technologies worldwide to tackle the COVID-19 pandemic   Geneva, June 22, 2021   On June 15, 2021, we, the Directors General of WHO, WIPO and the WTO, met in a spirit of cooperation and solidarity to map out further collaboration to tackle the COVID-19 pandemic and the pressing global challenges at the intersection of public health, intellectual property and trade. Acutely conscious of our shared responsibility to communities across the world as they confront a health crisis of unprecedented severity and scale, we pledged to bring the full extent of the expertise and resources of our respective institutions to bear in ending the COVID-19 pandemic and improving the health and well-being of all people, everywhere around the globe.   We underscored our commitment to universal, equitable access to COVID-19 vaccines, therapeutics, diagnostics, and other health technologies-a commitment anchored in the understanding that this is an urgent moral imperative in need of immediate practical action.   In this spirit, we agreed to build further on our long-standing commitment to WHO-WIPO-WTO Trilateral Cooperation that aims to support and assist all countries as they seek to assess and implement sustainable and integrated solutions to public health challenges. Within this existing cooperative framework, we agreed to enhance and focus our support in the context of the pandemic through two specific initiatives.   First, our three agencies will collaborate on the organization of practical, capacity-building workshops to enhance the flow of updated information on current developments in the pandemic and responses to achieve equitable access to COVID-19 health technologies. The aim of these workshops is to strengthen the capacity of policymakers and experts in member governments to address the pandemic accordingly. The first workshop in the series will be a workshop on technology transfer and licensing, scheduled for September. The workshop will help our members to update their knowledge and understanding of how Intellectual Property, know-how and technology transfer work in actuality. This would be in the context of medical technologies but also related products and services. This first workshop will be followed by others on related practical themes.   Secondly, we will implement a joint platform for tripartite technical assistance to countries relating to their needs for COVID-19 medical technologies, providing a one-stop shop that will make available the full range of expertise on access, IP and trade matters provided by our organizations, and other partners, in a coordinated and systematic manner. The platform for technical assistance will, in particular, support countries to assess and prioritize unmet needs for COVID-19 vaccines, medicines and related technologies, and provide timely and tailored technical assistance in making full use of all available options to access vaccines, medicines and technologies, including through coordination between members facing similar challenges to facilitate collective responses.   These initiatives will also be underpinned by our joint efforts to collect and make accessible robust and inclusive data needed to guide an effective response to the COVID-19 pandemic. This will include a periodical update of the overview of COVID 19-related measures that are mapped in a key resource for trilateral cooperation, the WHO-WIPO-WTO publication "Promoting Access to Medical Technologies and Innovation: Intersections between public health, intellectual property and trade", published in 2020.
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Beijing Law Intellectual Property Agency Co., Ltd.
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Beijing Law Intellectual Property Agency Co., Ltd.

Copyright: Beijing Law Intellectual Property Agency Co., Ltd.          Powered by​         京ICP备09099344号-1