China IP Development


  
RELEVANT CHINESE IP LEGISLATIONS AND POLICIES, AND INDUSTRY DEVELOPMENT TREND IN RECENT ONE YEAR
 
I. Legislations  
1. Anti-Unfair Competition Law of the People’s Republic of China The latest version of Anti-Unfair Competition Law of the People’s Republic of China was formulated on November 4, 2017 and then officially implemented on January 1, 2018. It is the first material alteration after more than twenty years of implementing the Anti-Unfair Competition Law of the People’s Republic of China. There are comprehensive amendments in the aspects such as the specific representation forms of unfair competition acts, the investigation procedures for countering unfair competition, the corresponding punitive measures, etc. in the latest version of Anti-Unfair Competition Law of the People’s Republic of China.
 
2. E-Commerce Law The E-Commerce Law of the People’s Republic of China was passed by voting at the meeting convened by the Standing Committee of the National People’s Congress on August 31, 2018. The Law emphasizes the IP protection, and specifies the obligations of E-commerce platform operators and the platform-based merchants on the IP protection and their corresponding legal liabilities for failure to perform such obligations. Specifically speaking, E-Commerce Law will have the effect on the IP protection in the following aspects:
(1) In the case that E-commerce platform operator “shall have known” for the platform-based merchant having the IP infringing act, the platform operator is obligated to take the necessary action to inhibit such infringing acts.
(2) The E-Commerce Law specifies the preconditions different from the juridical practice “Notification - Deletion”;
(3) The user who filed the malicious complaint to E-commerce platform may undertake the punitive liabilities for damage.
 
II. Policies  
The important experience in the practice of the IP system in China is based on one relatively systematic and effective public policy system. In constructing the public policy system, China “intensified the leading role of IP in the economic, cultural and social policies”, and “strengthened the convergence of industrial policies, regional policies, science & technology policies and trade policies with the IP policies”. The above-mentioned policy documents are specific and multi-layered, even though there are insufficient policy coordination and poor practicality problems, generally speaking, China effectively developed its system advantages and policy power to provide the necessary policy environment for the implementation of IP strategies with the emphasis on learning the policy development experience from the innovative countries.
 
While in China, the IP-related law enforcement and policy application are led and guided by the national IP strategies. The implementation of IP strategies is not only the internal need for the self-dependent innovation, the innovative country construction and the comprehensive realization of moderately prosperous society, but also the policy selection for transferring the economic development pattern and promoting the highquality economic development. The IP strategies under the guidance of new development concept deeply reflect the target orientation and practice route of IP system construction in China.
 
In June 2008, the Outline of National Intellectual Property Strategy was officially published and implemented; The State Council issued the Several Opinions on Building A Powerful Intellectual Property Nation under New Conditions in December 2015, and the above-mentioned IPrelated policy documents are the strategic deployment and top-level design made by the state to promote the innovation-driven development.
 
It is believed that the basic tasks for building one innovative country are to build the policy system with the IP strategies as the core, perfect the regulations and specifications with the IP laws as the subject body and advocate the innovative culture with the IP as important contents.
 
China has successively formulated and implemented a series of policy documents since the introduction of the Outline of National Intellectual Property Strategy. Including 28 documents issued jointly by the Central Ministries and Commissions, and 294 documents issued by the Central Government Ministry. The ontological policy documents relevant to the IP field mainly include the Agricultural IP Strategy Compendium (2009), Radio, Film and Television IP Strategy Implementation Opinions (2010), the “12th Five-Year” Plan for the National IP Undertaking Development (2011), the Several Opinions on Reinforcing IP in Burgeoning Strategic Industries (2012), the Action Plan for Deepening the Implementation of the National IP Strategy (2014 - 2020) (2014), the 13th Five-Year Plan for National IP Protection and Application (2016), etc.
 
III. Industry development
Compared with 2016, the innovation index of China increased by 3 places to the 22nd in 2017 as shown in the Global Innovation Index 2018; The innovation index score was 52.5 with an increase of 1.9. The innovation output secondary index of China increased by 4 places to the 11th. In the seven indexes, the rankings of China in the system (increased by 1 place to the 78th), human capital and study (increased by 4 places to the 25th), infrastructures (increased by 9 places to the 27th), knowledge and technology output (increased by 2 places to the 4th), innovation output (increased by 4 places to the 26th), etc. were increased by compared with that of 2016, but the two main types rankings in the market maturity degree, business maturity degree, etc. were slightly descended.
 
It is reported that China is one unique middle-income country of which the innovation gap from the developed countries is gradually narrowed, and has successfully ranked among the global innovation leaders. In 2017, the innovation-efficiency ratio of China increased by 4 places to the 3rd; The innovation quality increased by 1 place to the 16th. The rankings of China in the number of the patent applications, the utility model applications and the industry design applications by Chinese people, the size of domestic market, the number of knowledgeable workers, the proportion of companies engaged in the normal training services, knowledge influence, the proportion of high-tech export (excluding the reexport) in the total trade, the proportion of innovative products in the total trade volume and other many indexes were kept at the first place all over the world.
 
In 2017, the rankings of China in the IP related indexes were stable but slightly increased by. The rankings of China were kept its first place in the number of the patent applications, the utility model applications and the industry design applications by Chinese people, etc., and the rankings in the number of PCT international patent applications/one billion purchasing power converted into USD GDP (increased by 8 places to 17th), and the number of trademark applications by the Chinese people/billion purchasing power converted into USD GDP (increased by 4 places to the 4th) and other indexes continued to rise.
 
IV. IP service market
Compared with 2017, the quantity of patent agencies was with the most rapid increase of 313 in 2016. By the end of 2017, the total number of patent agencies and professional patent agents all over the country were respectively 1,824 and 16,300.
 
In recent several years, the IP service market in China has been expanded rapidly. It is expected by 2020 that the market size of the IP authentic right will respectively reach up RMB76 billion and the IP information consulting services market will be at least RMB46 billion. The total trade volume of technical contracts will reach up RMB2,000 billion.
 
The IP financing amount will reach up RMB180 billion, and the amount of IP protection services will be close to RMB50 billion in China. The market has a huge growth potential in China. Overall, however, the IP industry is currently featured by the market diversification and low concentration ratio currently and still in the initial development stage, there is a very wide space for the overall IP industry development.
 
V. Typical cases
Ten Major IP Cases in Chinese Courts in 2017 issued by the Supreme People’s Court
1. Dispute case between Wong Lo Kat and Jiaduobao for the special packaging decoration for well-known commodities Two dispute cases of Guangdong Jiaduobao Drink & Food Co., Ltd. v. Guangzhou Wong Lo Kat Health Industry Co., Ltd. and Guangzhou Pharmaceuticals Corporation for the unauthorized use of special packaging decoration for well-known commodities [the Supreme People’s Court (2015) MSZ Zi No.2 and No.3 Civil Judgments]
2. “Intellectual Property Office of Yulin” administrative resolution case of the patent infringement dispute The case of Xixia Longcheng Special Materials Co., Ltd. v. Intellectual Property Office of Yulin and Shaanxi Coal and Chemical Industry Group, Shenmu Tianyuan Chemical Industry Co., Ltd. for the administrative resolution of patent infringement disputes [the Supreme People’s Court (2017) ZGFXZ No.84 Administrative Judgment]
3. “Daohuaxiang” trademark infringement dispute case The case of Fuzhou Rice Factory v. Wuchang City Jinfutai Agriculture Co., Ltd., Fujian Xinhuadu Comprehensive Department Store Co., Ltd., Fuzhou Jinshan Dajingcheng Branch and Fujian Xinhuadu Comprehensive Department Store Co., Ltd. for the trademark infringement disputes [the Supreme People’s Court (2016) ZGFMZ No.374 Civil Judgment]
4. “Markush Claim” patent invalidity administrative dispute case Administrative case of Patent Reexamination Board of CNIPA v. Beijing WINSUNNY Pharmaceutical Co., Ltd. and Daiichi Sankyo Company Limited for the invalidity of invention patent [the Supreme People’s Court (2016) ZGFXZ No.41 Administrative Judgment]
5. “Xinhua Dictionary” trademark infringement and unfair competition dispute case The case of Commercial Press Co., Ltd. v. Sinolingua Co., Ltd. for the trademark infringement and unfair competition disputes [Beijing Intellectual Property Court (2016) J73MC No.277 Civil Judgment]
6. “Mao Dun Manuscript” copyright dispute case The case of Shen Weining, Shen Danyan and Shen Maiheng v. Nanjing Classic Auction Co., Ltd. and Zhang Hui for the copyright ownership and copyright infringement disputes [Jiangsu Nanjing Intermediate People’s Court (2017) S01MZ No.8048 Civil Judgment]
7. “Land Rover” trademark infringement dispute case The case of Jaguar Land Rover v. Guangzhou Fenli Food Co., Ltd. and Wan Mingzheng for the trademark infringement disputes [Guangdong High People’s Court (2017) YMZ No.633 Civil Judgment]
8. “Bo III A” new plant variety infringement dispute case The case of Sichuan Zhongzheng Science & Technology Co., Ltd. v. Guangxi Zhuang Autonomous Region Bobai Agricultural Science Research Institute, Wang Tengjin, Liu Zhenzhuo and Sichuan Zhongsheng Science & Technology Seed Industry Co., Ltd. for the new plant variety infringement disputes [Guangxi Zhuang Autonomous Region High People’s Court (2017) GMZ No.95 Civil Judgment]
9. “Reflective Material” trade secret dispute case The case of Hebi Reflective Co., Ltd. v. Song Junchao, Hebi Ruimingte Science & Technology Co., Ltd. and Li Jianfa for the trade secret disputes [Henan High People’s Court, P.R. China (2016) YMZ No.347 Civil Judgment]
10. “YiCHA” copyright infringement case The case of Beijing YiCHA Infinite Information Technology Co., Ltd. and Yu Dong for the copyright infringement [Shanghai Pudong New Area People’s Court (2015) PX(Z)C Zi No.12 Criminal Judgment]



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