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LONGAN IP Newsletter No.12 2022

Contents

Long An News

Long An successfully included in the list of “2022 ALB CHINA Top 30 Largest Law Firms” by Asian Legal Business

Long An and several lawyers won five awards by the China Intellectual Property Forum 2022

Long An included in the Banking and Finance List by The Legal 500

Long An won the Excellent Organization Award and Individual Awards in the 1st Intellectual Property Service Industry Practical Skills Competition in Shanghai

Long An Notable Cases

Long An represented a client in the patent invalidation administrative lawsuit and successfully got the invalidation decision of the CNIPA revoked

China IP News

The SPC issuedthe Provisions on Several Issues Concerning the Jurisdiction of Foreign-related Civil and Commercial Cases

The CNIPA issued the Understanding and Application for “General Trademark Violations Judgment Criteria”

The CNIPA issued a notice on adjustment of several patent business handling methods

Long An Comments

Healthcare data export security assessment and compliance points

Is the contract signed with the official seal privately engraved valid?


Long An News

 

Long An successfully included in the list of “2022 ALB CHINA Top 30 Largest Law Firms” by Asian Legal Business

Recently, the list of “2022 ALB China Top 30 Largest Law Firms” was released. Long An Law Firm, one of the largest comprehensive law firms in China, was on the list and ranked 14th with its outstanding professional ability and excellent comprehensive strength.

https://mp.weixin.qq.com/s/2xyFCeVpxRaA0WH4ivcAwA

 

Long An and several lawyers won five awards by the China Intellectual Property Forum 2022

Recently, the China Intellectual Property Forum released the IP & Antitrust service capability watch list 2022. This ranking is based on the research program for Chinese intellectual property & Antitrust service capability established by the Power-nation platform. Through verifying the top 10 cases published by the SPC, the Beijing High People’s Court and the CNIPA over the years, on the basis of the service capabilities and industry influence of the law firms/agencies and lawyers/professionals, final lists of the most representative IP teams and individuals in 2022 were formed.

 

Long An Law Firm won the “Top 25 China IP & Antitrust Domestic Law Firm”, and ranked 1st.

Mr. Jiali Xu won the “Top 10 IP Consultants”.

Mr. Jianjun Fu won the “Top Barristers of the Year”.

Ms. Cindy Quan won the “Top 10 Patent Lawyers”.

Ms. Yan Zhang won the “Top 10 Trademark Lawyers”.

 

These awards demonstrate the outstanding strength and performance of Long An Law Firm in various fields of intellectual property. It is undoubtedly the result of the joint efforts of all lawyers in the Long An IP team, and is inseparable from the long-term trust and support of clients. We highly appreciate the recognition and encouragement to Long An from all walks of life, and we will turn the honor into a driving force and provide clients with more professional and comprehensive intellectual property services!

https://mp.weixin.qq.com/s/bHALBLdENaOhTv8q-aXi6w

 

Long An included in the Banking and Finance List by The Legal 500

On November 23, 2022, The Legal 500, an international authoritative legal rating guide, announced the list of 2023 Chinese law firms, and Long An Law Firm was listed in the field of banking and finance.

https://mp.weixin.qq.com/s/VUiOzFbRiNIzpYCjuiouyQ

 

Long An won the Excellent Organization Award and Individual Awards in the 1st Intellectual Property Service Industry Practical Skills Competition in Shanghai

Recently, a team consisting of four lawyers (and patent attorneys) from Long An Shanghai office, Qi HE, Yanfen SUN, Jingtian BIAN, and Qingyuan HU, represented the firm to participate in the 1st Shanghai Intellectual Property Service Industry Practical Skills Competition hosted by the Shanghai Intellectual Property Service Industry Association. Lawyers SUN and HE won the second prize for writing (chemical field) and the third prize for writing (machinery field) respectively, and Long An Shanghai office won the Excellent Organization Award.

https://mp.weixin.qq.com/s/iKcjNAwwpLZvHsVv6QAPEQ

 

Long An Notable Cases

Long An represented a client in the patent invalidation administrative lawsuit and successfully got the invalidation decision of the CNIPA revoked

Recently, lawyers Cindy Quan, Jianjun Fu, and Xiaojun Zheng of Long An represented a client to win the administrative dispute concerning the invalidation request of a utility model patent named “a fluidized bed drying system”. The Beijing Intellectual Property Court upheld our claim and revoked the invalidation review decision of the CNIPA and ordered it to make a new review decision.

 

In this case, Long An represented the client to file a request for invalidation of a utility model patent, named “a fluidized bed drying system for treating yeast waste liquid” and owned by Shandong XX Energy Technology Co., Ltd., and the CNIPA made an invalidation decision to maintain the validity of the patent involved on the basis of the amended claims (hereinafter referred to as the accused decision).

 

The client was not satisfied with the accused decision, and Long An continued to represent the client as the plaintiff to file an administrative lawsuit against the accused decision with the Beijing Intellectual Property Court. In the end, the Beijing Intellectual Property Court upheld our point of view and determined that the technical problem solved in claim 1 identified in the accused decision was wrong, and the relevant determination in the accused decision on whether evidence 2 provided the technical inspiration combined with evidence 1 to obtain the technical solution of claim 1 was also wrong, so it ruled the CNIPA to revoke the accused decision and make a new invalidation decision.

 

According to relevant statistics, the success rate of revoking the invalidation decision of the CNIPA through patent invalidation administrative litigation is extremely low. This case successfully got the accused decision revoked from the perspective of identifying technical issues, which fully demonstrates the excellent professional ability of Long An lawyers.

https://mp.weixin.qq.com/s/mHJAhxUgDLzstBYXe9bUTw

 

China IP News

 

The SPC issued the Provisions on Several Issues Concerning the Jurisdiction of Foreign-related Civil and Commercial Cases

On November 15, 2022, the SPC issued the Provisions on Several Issues Concerning the Jurisdiction of Foreign-Related Civil and Commercial Cases, which will come into force on January 1, 2023.

 

These Provisions are formulated in accordance with the Civil Procedure Law of the People’s Republic of China and based on trial practice, with a view to protecting the lawful rights and interests of both Chinese and foreign parties in accordance with the law, facilitating the litigation by the parties, and further improving the quality and efficiency of foreign-related civil and commercial trials.

 

Article 1 The grassroots people’s courts shall have jurisdiction over foreign-related civil and commercial cases of first instance, unless otherwise stipulated by laws and judicial interpretations.

 

Article 2 The intermediate people’s courts shall have jurisdiction over the following foreign-related civil and commercial cases of first instance:

(1) Foreign-related civil and commercial cases of which the value of subject matter in dispute is large.

The intermediate people’s courts in Beijing, Tianjin, Shanghai, Jiangsu, Zhejiang, Fujian, Shandong, Guangdong, and Chongqing shall have jurisdiction over foreign-related civil and commercial cases of which the subject matter of the action is valued at CNY40 million or more; and

The intermediate people’s courts in Hebei, Shanxi, Inner Mongolia, Liaoning, Jilin, Heilongjiang, Anhui, Jiangxi, Henan, Hubei, Hunan, Guangxi, Hainan, Sichuan, Guizhou, Yunnan, Tibet, Shaanxi, Gansu, Qinghai, Ningxia, and Xinjiang, military courts of theater commands of the People’s Liberation Army (PLA) and military courts directly under the PLA, and intermediate people’s courts under the Production and Construction Corps Branch of the High People’s Court of Xinjiang Uygur Autonomous Region, shall have jurisdiction over foreign-related civil and commercial cases of which the subject matter of the action is valued at CNY20 million or more.

(2) Complicated foreign-related civil and commercial cases or those filed by a considerable number of persons as a party to litigation.

(3) Other foreign-related civil and commercial cases that have significant influence in the jurisdiction concerned.

Where laws and judicial interpretations have laid down other provisions on the jurisdiction of intermediate people’s courts over foreign-related civil and commercial cases of first instance, such provisions shall prevail.

 

Article 3 The high people’s courts shall have jurisdiction over foreign-related civil and commercial cases of first instance of which the subject matter of the action is valued at CNY5 billion or more, or other cases that have significant influence in the jurisdiction concerned.

 

Article 4 If a high people’s court deems it necessary based on the actual situation in its jurisdiction, it may designate one or more grassroots people’s courts or intermediate people’s courts to exercise cross-regional centralized jurisdiction over the foreign-related civil and commercial cases of first instance as stipulated in Articles 1 and 2 of these Provisions, after reporting to the Supreme People’s Court (SPC) for approval.

Where cross-regional centralized jurisdiction is exercised under the preceding paragraph, the high people’s court shall promptly make public the corresponding jurisdictional regions of the grassroots people’s courts or intermediate people’s courts as designated.

 

Article 5 Foreign-related civil and commercial cases shall be tried by specialized trial courts or collegial panels.

 

Article 6 These Provisions do not apply to cases of foreign-related maritime disputes, foreign-related intellectual property disputes, foreign-related ecological and environmental damages disputes, and foreign-related environmental civil public interest litigation.

 

Article 7 These Provisions shall apply, mutatis mutandis, to civil and commercial cases involving Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan.

 

Article 8 These Provisions shall come into force on January 1, 2023. Cases accepted after the implementation of these Provisions shall be subject to these Provisions.

 

Article 9 If any judicial interpretations previously issued by the SPC are inconsistent with these Provisions, the latter shall prevail.

https://mp.weixin.qq.com/s/l7Dsf0qbwubucdZhR9EEKQ

 

The CNIPA issued the Understanding and Application for “General Trademark Violations Judgment Criteria”

In order to further promote the business guidance of trademark law enforcement and further improve the publicity and interpretation of the “General Trademark Violations Judgment Criteria”, the CNIPA compiled and issued the Understanding and Application for the “General Trademark Violations Judgment Criteria”.

https://mp.weixin.qq.com/s/39NHSfTF6LkC163IRMqYjg

 

The CNIPA issued a notice on adjustment of several patent business handling methods

Recently, the CNIPA issued a notice on the adjustment of several patent business handling methods, clearly stipulating that starting from January 11, 2023, foreigners, foreign enterprises or other foreign organizations that do not have a permanent residence or business office in Chinese mainland and apply for a patent independently or as a representative should entrust a patent agency. Applications that do not entrust a patent agency shall not be accepted.

 

Individuals, enterprises, or other organizations in Hong Kong, Macao, or Taiwan that do not have a permanent residence or business office in Chinese mainland China and apply for a patent independently or as a representative should entrust a patent agency. Applications that do not entrust a patent agency shall not be accepted.

https://mp.weixin.qq.com/s/NYrPgznDgQNGYlIOaDqh3g

 

Long An Comments

 

Healthcare data export security assessment and compliance points

In the past five years, China has issued a series of relevant regulations and policies on healthcare data security and data export. When the data processors export data in accordance with the legal conditions, they shall apply for the data export security assessment to the national cyberspace administration through the provincial cyberspace administration. If it involves the export of important data such as health status and personal attributes, the opinions of relevant industry authorities should also be solicited. The main regulatory principles and features include:

  1. The principle of legitimate purpose of data export
  2. The principle of controllable data export risk
  3. The principle of consistency of rights and responsibilities for data processing of healthcare enterprises
  4. Guarantee citizens’ right of informed consent and strengthen privacy security
  5. Balance the relationship between data flow and data protection

 

For the export of healthcare data, China currently has no special legal regulations. According to the requirements of a series of policy documents such as “Data Security Law”, “Personal Information Protection Law”, “Data Export Security Assessment Measures”, national standards “Healthcare Data Security Guidelines”, “Data Export Security Assessment Guidelines”, when a data processor exports data under one of the following circumstances, it should apply for the data export security assessment to the national cyberspace administration through the provincial cyberspace administration:

  1. Personal information and important data collected and generated by operators of critical information infrastructure;
  2. The data exported contains important data;
  3. Personal information processors who process personal information of up to one million people export personal information;
  4. Accumulatively export the personal information of more than 100,000 people or the sensitive personal information of more than 10,000 people.

https://mp.weixin.qq.com/s/2ZZmHwjoKv_XkDFcJQrNFA

 

Is the contract signed with the official seal privately engraved valid?

Yanjin Weng (hereinafter referred to as the Defendant 1) needed financing from Binqiong You (hereinafter referred to as the Plaintiff) for the purpose of investment. The Plaintiff lent a total of CNY 2.45 million to the Defendant 1 in four installments, and the Defendant 1 issued 4 IOUs to the Plaintiff respectively. As guarantors, Huaxin Company (the Defendant 2) and Wanxiang Company (the Defendant 3) affixed their seals on the four IOUs. Defendant 1 is the chairman of Defendant 3.

 

On April 30, 2014, the Plaintiff and the Defendant 1 signed another agreement on the above-mentioned loan matters. The Agreement settled the above four loans and interest therefrom and re-agreed on the repayment period. In the Agreement, the Defendant 1 promised that if the loan cannot be repaid on time, the Plaintiff may choose the store in the real estate project developed by the Defendant 1 to offset the principal and interest of the loan. The Defendant 2 and Defendant 3, as guarantors, affixed their seals on the Agreement. After the Agreement was signed, the Defendant 1 failed to repay the principal and interest on time as agreed, nor did he provide the store to the Plaintiff to offset the principal and interest of the loan. The Plaintiff filed a lawsuit with Fujian Longyan Intermediate People’s Court, requiring the Defendant 1 to repay the principal and interest, and the Defendant 2 and Defendant 3 to undertake joint and several guarantee liabilities. The first-instance judgment of the Longyan Intermediate People’s Court upheld the Plaintiff’s claim. The Defendant 3 refused to accept the case and appealed to the Fujian High People’s Court, which ruled to reject the appeal and uphold the original judgment.

 

The Defendant 3 still refused to accept it and applied to the Supreme People’s Court for retrial. During this period, the Defendant 3 submitted the criminal judgment of the Wuping County People’s Court, confirming that in the second half of 2014, the Defendant 1 engraved the seal of the Defendant 3 privately, and affixed such seal on the IOUs and agreement provided by the Plaintiff. However, the Supreme People’s Court ruled to reject the retrial application of the Defendant 3.

 

The SPC held that the Defendant 1, as the chairman of the Defendant 3, obviously enjoys greater power than other managers of the company, so his external behavior can easily lead to the reasonable trust of the counterparty in the transaction. At the same time, the Defendant 1 is also a shareholder of the Defendant 3, and held the official seal of the Defendant 3 when signing the guarantee contract involved. Although the criminal judgment has determined that the official seal was privately engraved by the Defendant 1, considering the Defendant 1’s special position in the Defendant 3 and the shareholder identity, it is sufficient to make the Plaintiff, the counterparty of the transaction, develop reasonable trust. If it is obliged to conduct a substantive review of the authenticity for the official seal, the requirements for the counterparty are too strict, which is not conducive to protecting the security of the transaction. Therefore, the behavior of the Defendant 1 has constituted an apparent agency, and the Defendant 3 should assume the guarantee responsibility for the debt of the Defendant 1.

 

According to Article 41 of the Minutes of the National Courts’ Civil and Commercial Trial Work Conference, when trying a case, the people’s courts should mainly examine whether the signatory has the right of representation or agency at the time of affixing the seal, so as to determine the validity of the contract based on the relevant rules of representation or agency. The act of the legal representative or his/her authorized person affixing the official seal of the legal person on the contract indicates that he/she signed the contract in the name of the legal person and shall bear the corresponding legal consequences unless Article 16 of the Company Law and other laws have special provisions on his/her powers. Where a legal person denies the validity of a contract on the grounds that its legal representative no longer has the right of representation, that the affixed seal is a fake one, or that the affixed seal is inconsistent with the official seal on file, etc., the people’s courts shall not uphold it.

 

An agent must obtain legal authorization to sign a contract in the name of the principal. After the agent obtains legal authorization, the principal shall bear the responsibility for the contract signed in the name of the principal. If the principal denies the validity of the contract on the grounds that the agent no longer has the right of agency, that the affixed seal is a fake one, or that the affixed seal is inconsistent with the official seal on file, etc., the people’s courts shall not uphold it. At the same time, the “Understanding and Application” published by the Second Civil Tribunal of the SPC interpreted this provision as “It is necessary to establish the referee thinking of examining people rather than seals.”

 

According to Article 172 of the Civil Code, where the actor does not have the power of agency, exceeds the power of agency, or the power of agency has terminated, but still implements the act of agency, and the counterparty has reasons to believe that the actor has the power of agency, the act of agency is valid. For this case, even though the seal of the Defendant 3 affixed by the Defendant 1 was privately engraved, the Defendant 1 has rights and appearances such as the identity of the chairman and shareholder of the Defendant 3, the counterparty has reasons to believe that the Defendant 1 has the power of agency. According to the above-mentioned provisions, the Defendant 1’s act of signing the guarantee contract involved has legal effect, and the Defendant 3 should assume the guarantee responsibility for the Defendant 1’s debt involved.

https://mp.weixin.qq.com/s/o67C4pU-Zs5ZQdM5E-RWiA

 

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