LONGAN LAW FIRMContents
LongAn IP News
The case represented by Ms. Cindy Quan of LongAn was selected into “the summary of the judgment of Intellectual Property Court of the SPC (2021)”
Jiali Xu of LongAn went to Baidu to investigate
An attorney of LongAn was selected as one of the first professionals in the third-party supervision and evaluation mechanism for the compliance of enterprises involved in criminal cases in Beijing
China IP News
The SPC issued the Judicial Interpretation of the Anti-Unfair Competition Law (PRC)
LongAn Case Study
How can ISPs effectively navigate the safe harbor?
Following the trend and plagiarism of “e-commerce hot-selling products” continue despite repeated prohibitions. Have you been affected by the three major patent protection misunderstandings?
LongAn IP News
The case represented by Ms. Cindy Quan of LongAn was selected into “the summary of the judgment of Intellectual Property Court of the SPC (2021)”
On February 28, 2022, the Intellectual Property Court of the SPC released the annual report for 2021, selecting 48 typical cases from the 3,460 cases that were heard in 2021, and refining 55 key points of judgment, forming the “the summary of the judgment of Intellectual Property Court of the SPC (2021)”. The dispute over infringement of invention patent rights, Suzhou Yunbai **** Co., Ltd. (plaintiff), Suzhou ** Chimney Technology Co., Ltd. (defendant 1), Wujiang ** Metal Products Co., Ltd. (Defendant 2), represented by Ms. Cindy Quan, Mr. Jianjun Fu and Mr. Xiaojun Zheng of LongAn was successfully selected.
Identification of the functional feature when there are multiple usage environments
[Case No.] SPC Zhi Min Zhong No. 409 (2019)
[Judgment points] When there are multiple usage environments for the technical solution of a patent, determining the functional feature should combine the specific implementation described in the specification by means of distinguishing indispensable technical features for realizing the limited function or effect of the functional feature in specific implementation manners from adaptable technical features due to different usage environments from the perspective of technicians skilled in the field. The adaptive technical features are usually not part of the content of the functional features.
Mr. Jiali Xu of LongAn went to Baidu to investigate
Recently, Mr. Xu, the founder partner of LongAn, as the vice president of the Beijing Intellectual Property Research Association, went to the headquarters of Baidu to investigate and listened to the detailed introduction of Baidu by its relevant person in charge. He focused on the investigation of its intellectual property layout and protection in search engines and artificial intelligence, especially autonomous driving, and conducted a detailed investigation and research on patent applications, trademark applications and rights protection of Baidu.
https://mp.weixin.qq.com/s/DD3VBHjqSnkLnu9cO5oU6A
An attorney of LongAn was selected as one of the first professionals in the third-party supervision and evaluation mechanism for the compliance of enterprises involved in criminal cases in Beijing
On February 8, 2022, the Beijing Management Committee on the third-party supervision and evaluation mechanism for the compliance of the enterprises involved in criminal cases issued the Decision on the Announcement of the First Batch of Third-party Mechanism Professionals of the Beijing Management Committee on the Third-Party Supervision and Evaluation Mechanism for the Compliance of the Enterprises Involved in Criminal Cases. An attorney of LongAn was successfully selected.
https://mp.weixin.qq.com/s/Iy245CKfUkZBDseFT3kchw
China IP News
The SPC issued the Judicial Interpretation of the Anti-Unfair Competition Law (PRC)
On March 16, 2022, the SPC issued the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People’s Republic of China” (hereinafter referred to as the “Interpretation”), which came into effect as of March 20, 2022. The Interpretation consists of a total of 29 articles. The revised Anti-Unfair Competition Law focuses on making detailed provisions on Article 2 of the Anti-Unfair Competition Law, counterfeiting and confusion, false advertising, and online unfair competition.
Articles 16 and 17 of the Interpretation explain the false commercial advertising in the first paragraph of Article 8 of the Anti-Unfair Competition Law.
Article 16, if an operator provides untrue commodity-related information in the process of commercial advertising, and deceives or misleads the relevant public, the people’s court shall determine it as false commercial advertising as Paragraph 1 of Article 8 of the Anti-Unfair Competition Law.
Article 17, where an operator commits one of the following behaviors to deceive or mislead the relevant public, the people’s court may determine it as “misleading commercial advertising” according to Paragraph 1 of Article 8 of the Anti-Unfair Competition Law:
(1) One-sided advertising or comparison of commodities;
(2) Using scientifically unconfirmed viewpoints, phenomena, etc. as conclusive facts for commodity advertising;
(3) Using ambiguous language for commercial advertising;
(4) Other misleading commercial advertising behaviors.
The people’s court shall determine misleading commercial advertising behaviors based on factors such as daily life experience, the general attention of the relevant public, the fact causing the misunderstanding, and the actual situation of the target of advertising.
https://mp.weixin.qq.com/s/SozhPVRMTtaSkZUefxE6Fw
https://mp.weixin.qq.com/s/5fX3T53HKBW5-M22-miUrg
LongAn Case Study
How can ISPs effectively navigate the safe harbor?
The Safe Harbor Rule is to protect the legal environment for internet service providers (ISPs) to operate normally, however, the safe harbor rule does not apply to all network service behaviors.
- The prerequisites for the application of the “Safe Harbor Rule” are:
(1) ISPs only provide technical services, without providing content including but not limited to directly providing works, selecting works or actively editing them.
(2) ISPs have taken corresponding measures in the process of providing technology.
(3) ISPs shall stop providing services to “repeated infringers”.
(4) Publicizing the channels for infringement notices.
If ISPs commit infringements by network services, the right holder is entitled to notify ISPs to take necessary measures such as deletion, blocking, disconnection, etc. After the receipt of the notice, ISPs shall promptly forward it to the relevant network users, and take necessary measures according to the preliminary evidence of infringement and the type of service. If the necessary measures are not taken in time, ISPs and the network users shall be jointly and severally liable for the enlarged part of the damages.
- The relationship between “Notice and Take Down” and disclaimer determination
(1) Failure to delete the content involved in the case after the receipt of the notice does not mean that ISPs necessarily constitute infringement.
If infringement facts stated in the infringement notice of the right holder do exist and ISPs are judged to constitute infringement, while ISPs don’t delete the content involved in the case after the receipt of the notice, it can be determined that ISPs have a subjective fault and constitute a common infringement, which should not be exempted from liability. If the fact of infringement stated in the infringement notice of the right holder does not exist, or it is judged that ISPs don’t constitute infringement, ISPs obviously do not need to bear the responsibility for joint infringement.
(2) Deleting the content involved in the case after the receipt of the notice does not mean that ISPs do not constitute infringement.
Infringement notification is only one of the ways for the right holder to prove that ISPs know or should have known the infringement subjectively. However, the deletion of the content involved in the case after receiving the notice does not mean that ISPs do not subjectively know or should have not known the fact of infringement when providing the network service. If it can still be determined, based on other factors, that ISPs subjectively know or should have known that the content uploaded by the network user constitutes infringement when providing the network service, ISPs still shall bear the liability for infringement.
Link: https://mp.weixin.qq.com/s/RycdmOHLLkZeiJESsbDxCQ
Following the trend and plagiarism of “e-commerce hot-selling products” continue despite repeated prohibitions. Have you been affected by the three major patent protection misunderstandings?
In the process of representing related cases, LongAn lawyers found that many parties have some misunderstandings in the patent protection of “e-commerce hot-selling products”, which are as follows:
Misunderstanding 1: Apply for patents after a product becomes a hot-selling one
Misunderstanding 2: A product only applies for one patent
Misunderstanding 3: The rights can be protected smoothly with the patent certificate
In order to avoid the above misunderstandings, patentees shall pay attention to the following 3 points:
(1) The patentee should have legal awareness of the patent layout in advance.
The correct sequence is to apply for a patent first and market its products then.
(2) The patentee should apply for a patent portfolio.
According to the degree of improvement and patentability of the product relative to the prior art, the patentee should allocate a reasonable patent portfolio. Some smart followers may hire professional lawyers or patent agencies to prejudge the risk of infringement before producing similar products, and formulate relevant evasion plans based on the pioneers’ patents. The more patents the pioneer owns, the more points the followers need to avoid, and the higher the cost.
(3) The patentee should pay attention to the drafting quality of the patent application, and reasonably determine the protection scope of the independent claims.
The patentee should, on the basis of sufficient search and research, determine the technical problem to be solved by the patent relative to the closest prior art, in order to write the necessary technical features to solve the technical problem into the independent claims.
The patentee should write the common and essential technical features to the closest prior art into the preamble of the independent claims, and the essential technical features that are different from the closest prior art into the characteristic part, to form a complete content of independent claims.
Link: https://mp.weixin.qq.com/s/TwoIYIrNBsmBmatZQ1TlsA
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