Text | Tianyuan Intellectual Property Team
Overview of this issue
●
The Cyberspace Administration of China has revised the " Mobile Internet Application Information Service Management Regulations ", which has put forward new requirements for application providers and application distribution platforms, which will be implemented from 2022 It will come into effect on August 1, 2019.
●
The Ministry of Transport issued the " Ministry of Transport Measures for Promoting the Transformation of Scientific and Technological Achievements ", which regulates transformation methods and technical rights and interests, mechanism construction, income distribution and transformation incentives, investment in achievement transformation, performance evaluation of achievement transformation work, part-time personnel and Provisions have been made on leaving work to start a business, etc., which will be effective from May 24, 2022.
●
In 2022, the "Blue Sky" action for the intellectual property agency industry will be fully launched, including continuing to increase the crackdown on key illegal agency behaviors, effectively strengthening the comprehensive management of platform-based intellectual property service agencies, comprehensively strengthening the supervision of intellectual property agency practitioners, and strengthening Six key tasks include guiding innovative entities and social supervision, strengthening policy coordination and linkage, and strengthening industry self-discipline. Focusing on the key tasks of the "Blue Sky" operation, various localities have adopted a series of targeted measures according to local conditions, actively innovated, increased efforts, and adopted a series of targeted measures.
●
The Supreme People's Court issued the "Opinions of the Supreme People's Court on Strengthening the Judicial Application of Blockchain", proposing to establish an interoperable and shared judicial blockchain alliance, build a people's court blockchain platform, and use blockchain data anti-tampering technology to improve Judicial credibility, the application of blockchain to optimize business processes to improve judicial efficiency, the application of blockchain interoperability and linkage to promote judicial coordination, and the use of blockchain alliance mutual trust to serve economic and social governance and other requirements.
●
Regarding the unfair competition case of the "Wanci Baping" service, the Suzhou Intermediate People's Court of Jiangsu Province held that the case should be based on competition relations, the use of network technology means, going against the wishes of other operators and causing other legally provided network products or The service is unable to operate normally, violates the principle of good faith and business ethics, disrupts the order of market competition and damages the legitimate rights and interests of consumers, and lacks reasonable reasons.
●
Regarding the case of Nanchong "Impression Jialing River" pontoon project using the "pontoon guardrail" design patent, the Shanghai Intellectual Property Court held that there are three conditions for the establishment of a patent implied license: In terms of subjective status, the patentee has no regard for the design patent He knew that it was the same design as the design involved in the case; in terms of objective behavior, the patentee had implicitly licensed the use of the design involved in the case through relevant previous actions; in terms of reasonable consideration, both parties had reached an agreement on the patent usage fees and had fulfilled them.
Laws and policies
1. The Cyberspace Administration of China Revised the "Regulations on the Management of Information Services for Mobile Internet Applications"
On June 14, 2022, the Cyberspace Administration of China released the newly revised "Regulations on the Management of Information Services for Mobile Internet Applications" (hereinafter referred to as the "Regulations") will come into effect on August 1, 2022.
"Regulations" point out that application providers and application distribution platforms shall abide by the Constitution, laws and administrative regulations, and shall not use applications to engage in activities prohibited by laws and regulations such as endangering national security, disrupting social order, infringing on the legitimate rights and interests of others, and shall promote Socialist core values , adhere to the correct political direction, public opinion guidance and value orientation, follow public order and good customs, fulfill social responsibilities, and maintain a clear cyberspace. At the same time, application providers and application distribution platforms should fulfill the main responsibilities of information content management, actively cooperate with the country to implement the network trusted identity strategy, establish and improve information content security management, information content ecological governance, data security and personal information protection, minors’ Management systems such as personal protection are in place to ensure network security and maintain a good network ecology.
For application providers, the "Regulations" require: Application providers that provide users with information release, instant messaging and other services should conduct registration based on mobile phone number, ID number or unified social credit code for users who apply for registration. real identity information authentication; application providers that provide Internet news information services through applications should obtain an Internet news information service license; application providers that provide other Internet information services must obtain the approval of the relevant competent authorities in accordance with the law or obtain relevant If permitted, services may only be provided after review and approval by the relevant competent authorities or after obtaining relevant licenses.
For application distribution platforms, the "Regulations" require that: application distribution platforms should register with the cybersecurity and informatization departments of the local provinces, autonomous regions, and municipalities within thirty days of online operation; they should establish a classified management system to implement classified management of listed applications. And register applications by category with the cybersecurity and informatization departments of the provinces, autonomous regions, and municipalities where they are located; measures such as composite verification should be adopted to verify application providers applying for listing based on mobile phone numbers, identity document numbers, or unified social credit codes, etc. Real identity information authentication that combines methods; a sound management mechanism and technical means should be established and improved, and management measures such as shelf review, daily management, and emergency response should be established and improved. The revision of the
"Regulations" will help application providers and application distribution platforms to effectively fulfill their responsibilities and obligations, strengthen their own management in accordance with relevant laws and regulations, actively accept social supervision, and continuously promote the healthy and orderly development of application information services.
Source: National Internet Information Office [1]
2. The Ministry of Transport issued the "Measures of the Ministry of Transport to Promote the Transformation of Scientific and Technological Achievements"
On May 24, 2022, the Ministry of Transport issued the "Measures of the Ministry of Transport to Promote the Transformation of Scientific and Technological Achievements" (hereinafter (referred to as the "Measures"), shall come into effect on the date of promulgation, and shall be interpreted by the science and technology department of the Ministry of Transport.
Regarding the transformation methods and technical rights and interests, the "Measures" clarified the main methods for the transformation of scientific and technological achievements, stipulated the corresponding work requirements in terms of publicity, confidentiality, asset evaluation, pricing and shareholding, etc., and further clarified the units, achievement achievers and both parties. Responsibilities and obligations for promoting the transformation of results, etc.
Regarding mechanism construction, the "Measures" clarify the policy orientation of supporting the establishment of new R&D institutions, guiding and standardizing the evaluation of results, actively cultivating and developing the transportation technology market, comprehensively utilizing the Ministry's science and technology management policy tools, and encouraging industry, academia and research institutes to jointly carry out achievement transformation, etc. It is emphasized that all units should establish and improve the working mechanism for the transformation of scientific and technological achievements, strengthen the construction of achievement transformation capabilities, and accelerate the construction of transportation technology transfer institutions and technical managers.
Regarding income distribution and transformation incentives, the "Measures" clarifies the requirements for the disposal of income from the transformation of each unit's achievements, rewards for the transformation of scientific and technological personnel's achievements, recognition and registration of technology contracts, financial disposal of reward payments, reward disclosure, tax preferential conditions, etc. As well as specific contents such as the calculation of personal income tax at a reduced rate of 50% for cash rewards; it stipulates that scientific and technological personnel in leadership positions receive scientific and technological achievement transformation rewards in accordance with the principles of classified management and specific requirements for achievement transformation rewards under various circumstances, and encourages all On the premise of legal compliance, the unit shall refer to and implement the incentive policies issued by the local provincial party committee and government to promote the transformation of achievements.
Regarding the investment of funds for the transformation of achievements, the "Measures" clearly encourage the comprehensive use of social funds, special funds, unit-owned funds, paid open and shared scientific research facilities and other financial channels to support the transformation of scientific and technological achievements.
Regarding the performance evaluation of achievement transformation work, the "Measures" clarified that each unit should establish an annual reporting system for the transformation of scientific and technological achievements, the main content of the report, and that each unit should incorporate the transformation of scientific and technological achievements into the performance evaluation system.
Regarding part-time work and starting a business off the job, the "Measures" clarify the relevant requirements for part-time and part-time salary for members of the leadership team, middle-level leaders, and general scientific and technological personnel, and clarify the relevant responsibilities and obligations of scientific and technical personnel during the period of leaving the job and starting a business, as well as their relationship with their units. Relationship handling, and each unit can issue specific management measures and report them to the ministry for filing, etc.
The formulation of the "Measures" is an important measure for the Ministry of Transport to fully implement the decisions and arrangements of the Party Central Committee and the State Council on promoting the transformation of scientific and technological achievements, maintain the continuity and consistency of industry policies, and continue to improve the efficiency of the transformation of scientific and technological innovation achievements in transportation.
Source: Ministry of Transport [2]
Hot Topics and Trends
1. The "Blue Sky" Action for the Intellectual Property Agency Industry is Fully Launched in 2022
Recently, in accordance with the State Intellectual Property Office "About Continuously Deepening the "Blue Sky" Special Project for the Intellectual Property Agency Industry" "Notice on Rectification Action" requires that the intellectual property management departments of 31 provinces, autonomous regions, municipalities directly under the Central Government and the Xinjiang Production and Construction Corps in the country formulate and issue local "blue sky" action plans based on local realities, and initiate implementation in a timely manner. The 2022 "Blue Sky" action includes continuing to increase the crackdown on key illegal agency activities, effectively strengthening the comprehensive management of platform-based intellectual property service agencies, comprehensively strengthening the supervision of intellectual property agency practitioners, strengthening the guidance of innovative entities and social supervision, and strengthening policy coordination and linkage. , strengthening the role of industry self-discipline and other six key tasks, and focusing on five types of illegal agency behaviors, including agency irregular patent applications, malicious trademark applications, unqualified patent agents, forging and altering official documents, and soliciting business by improper means, as key rectification contents. Focusing on the key tasks of the "Blue Sky" operation,
has adopted a series of targeted measures in accordance with local conditions, actively innovated, intensified efforts, and adopted a series of targeted measures. Tianjin, Shanxi, Jilin, Shanghai, Zhejiang, Ningxia, Xinjiang and other places will comprehensively verify the information of enterprises whose business scope includes intellectual property agency through various enterprise credit information disclosure systems, and check whether there are unqualified agents, leasing qualifications or long-term unsatisfied Establishing conditions and other behaviors. Inner Mongolia, Liaoning, Jiangxi, Henan and other places will intensify the investigation and punishment of abnormal patent applications and malicious trademark behaviors of agents, and supervise agencies to conduct comprehensive self-examination and self-correction of unfinished applications they represent. Beijing, Shandong, Guangxi, Shaanxi and other places will carry out credit-based hierarchical and classified supervision, reduce the frequency of spot inspections of institutions with good credit, and increase inspections of institutions with credit risks and those established under a notification and commitment system. Hebei, Jiangsu, Hunan , Sichuan will continue to solidly promote the pilot work of patent agency credit evaluation management. Heilongjiang, Fujian, Hubei, Yunnan, Qinghai, Tibet and other places will explore the establishment of a patent and trademark agency "white list" system, clearly incorporate conditions, procedures and exit mechanisms, and support corresponding facilitation measures and preferential policies to encourage agencies to operate legally and standardizedly. . Anhui, Guizhou, Gansu and other places will guide local companies to select agencies carefully through various methods such as printing agency rosters and publishing agency quality data . Guangdong, Chongqing, Hainan and other places will further accelerate the promotion of entrusted law enforcement and decentralization of law enforcement powers, strengthen the protection of regulatory power, and improve the efficiency of case handling.
In the next step, the State Intellectual Property Office will continue to strengthen overall coordination, increase supervision, regularly report work progress in various places, promote useful experience in a timely manner, promote the "Blue Sky" action to achieve greater results, and comprehensively promote the high quality of the intellectual property service industry Provide strong support for the development of and the construction of a powerful country with intellectual property rights.
Source: State Intellectual Property Office [3]
2. The Supreme People's Court issued the "Opinions of the Supreme People's Court on Strengthening the Judicial Application of Blockchain"
In order to further strengthen the application of blockchain in the judicial field, give full play to the blockchain In promoting judicial credibility, serving social governance, preventing and defusing risks, and promoting high-quality development, the Supreme People's Court has formulated and issued the "Supreme People's Court's Notice on Strengthening Blockchain Judiciary" based on full research, extensive solicitation of opinions, and multi-party argumentation. Opinions on Application" (hereinafter referred to as "Opinions").The "Opinions" mainly have the following distinctive features:
First, it proposes to establish an interoperable and shared judicial blockchain alliance. The "Opinions" propose that by 2025, a blockchain alliance for interoperability and sharing between people's courts and all walks of life will be established. Basic support capabilities such as data verification, trusted operations, smart contracts, and cross-chain collaboration will be greatly improved. Judicial blockchain cross-chain The alliance integrates into the economic and social operating system, actively serves the optimization of business environment, economic and social governance, risk prevention and resolution, and industrial innovation and development, serves the construction of Safe China, Rule of Law, Digital China and Integrity China, and forms a world-leading blockchain with Chinese characteristics Application model in the judicial field.
The second is to clarify the requirements for the construction of the block chain platform of the People's Court. The "Opinions" clearly require the People's Court to strengthen the top-level design of blockchain applications, continue to promote the construction of cross-chain collaborative application capabilities, enhance judicial blockchain technology capabilities, build an Internet judicial blockchain verification platform, and establish and improve a standard and normative system. . The "Opinions" propose to build an open and shared judicial blockchain platform for national courts, strengthen the construction of cross-chain alliances between judicial blockchain platforms and blockchain platforms in various industries, and continue to improve collaborative capabilities; it is necessary to build judicial blockchain verification on the Internet The platform supports parties and other relevant parties to verify the authenticity of judicial data such as mediation data, electronic evidence, and litigation documents.
Thirdly, it is proposed to use blockchain data anti-tampering technology to enhance judicial credibility. The "Opinions" propose to promote the on-chain storage of judicial data such as the People's Court's electronic files, electronic archives, and judicial statistical reports, promote the on-chain storage of data and operations such as execution cases, and promote the storage of litigation documents and service receipts served by the People's Court in the judicial district. The blockchain platform provides unified storage to ensure judicial data security and operational compliance. The "Opinions" clearly improve and improve the evidence verification function of the blockchain platform, support parties and judges in online verification of electronic evidence stored through the blockchain, promote the improvement of standards and rules for blockchain evidence storage, and improve the efficiency and quality of electronic evidence identification.
Fourth, it is proposed to apply blockchain to optimize business processes and improve judicial efficiency. The "Opinions" propose to support five typical application scenarios, including the application of case filing information flow, the connection application of mediation and trial processes, the connection and linkage of trial and execution processes, improving execution efficiency, and supporting enforcement officers to conveniently handle cases, so as to improve the level of business process automation and improve judicial efficiency. The "Opinions" propose to establish business rules and smart contract procedures such as trial filing and execution filing that will automatically trigger trial filing and execution filing if the mediation agreement is not fulfilled, strengthen the judicial authority of the mediation process, and support the resolution of diversified disputes.
Fifth, it is proposed to use blockchain interconnection and linkage to promote judicial coordination. The "Opinions" propose to build a cross-chain collaborative application between the People's Court and the judicial administration department to support the online inquiry and verification of lawyer qualifications and credit reports participating in litigation activities, and improve the real-time verification; it proposes to build a cross-chain collaborative application between the People's Court and the procuratorial, public security, judicial administration and other departments. Cross-chain collaborative application to improve the efficiency of online case circulation and the level of data mutual trust; build cross-chain collaborative application between the People's Court and administrative law enforcement, real estate registration, financial securities and insurance institutions, joint credit punishment and other units to establish automated execution inspection and credit punishment mode to improve the efficiency of collaborative execution.
Sixth, it is proposed to use blockchain alliance mutual trust to serve economic and social governance. The "Opinions" propose to promote the construction of a cross-chain collaborative application mechanism for blockchain platforms such as intellectual property, market supervision, property rights registration, trading platforms, data ownership, data transactions, financial institutions, and relevant government departments, and support the intellectual property protection of , , Business environment optimization, data development and utilization, financial information circulation and application, corporate bankruptcy and reorganization, credit reporting system construction, etc.
Source: Supreme People's Court [4]
Selected Typical Cases
1. The "Wanci Baping" service was found to constitute unfair competition
To judge whether the "Wanci Baping" service constitutes unfair competition, the competitive relationship and the use of network technology should be considered. Implementation of means, against the wishes of other operators and causing other legally provided network products or services to fail to operate normally, contrary to the principles of good faith and business ethics, disrupting the order of market competition and damaging the legitimate rights and interests of consumers, and lacking reasonable grounds. identified.
Basic case facts:
The plaintiff Beijing Baidu Netcom Technology Co., Ltd. (hereinafter referred to as " Baidu Company ") claimed that the defendant Suzhou Flash Tui Network Technology Co., Ltd. (hereinafter referred to as "Flash Tui Company") is a flash The operating entity of the Tui website is a company that specializes in providing "Wanciba screen" services to others and also operates a management system. The flash push company uses the management system to automatically generate and publish a large number of keywords and promotional web pages in a short period of time. The keywords almost cover the commonly used keywords in the industry. The content of the promotional web page is produced by the flash push company's pseudo-original patchwork, and the content is shoddy. The flash push company takes advantage of the fact that "high-weighted websites" are easily included and ranked by , Baidu, search engines, and adds promotional webpages for service objects under the domain names of such websites. However, these promotional webpages do not exist in "high-weighted websites". website", it is a fake web page. When ordinary Internet users search using commonly used keywords in the industry based on their trust in Baidu search, these promotional web pages occupy a large number of positions on the home page of search results. This behavior destroyed the normal collection and ranking order of Baidu search engine, created a large amount of online spam, affected Baidu search user experience, reduced users' trust in Baidu search, and caused Baidu's search engine algorithm to be inaccurate. For this, we are responsible for Massive economic losses. The behavior of Flash Push Company has violated the principle of good faith and generally accepted business ethics, undermined the normal order of market competition, and constituted unfair competition.
Defendant Flash Push Company argued that, first of all, Flash Push Company’s technical operation method did not interfere with or destroy the inclusion and sorting rules of Baidu search engine, nor did it constitute a false web page. The flash push company only discovered and applied the characteristics of Baidu's search engine inclusion and ranking rules, and relied on the formal information release platform of "weighted websites" to provide customers with a product information release channel where the information is easier to include. The information released by the flash push company is not "shoddy", it only releases product information truthfully, and there is no "pseudo" original behavior or intention. Secondly, Baidu does not have the right to review the release of web page information. If this case supports the plaintiff's petition, it will create the right to review web content for Baidu, which will encourage Baidu to abuse its market dominance to form a greater industry monopoly. Thirdly, the flash push company does not constitute unfair competition. There is no overlap or overlap in business scope, services or consumer objects with Baidu, nor do they have the same market interests, so there is no competitive relationship. The actions of FlashTweet Company did not violate the "recognized business ethics" stipulated in the Anti-Unfair Competition Law, nor did it disrupt the order of market competition, nor did it harm the legitimate rights and interests of other operators or consumers. To sum up, FlashTweet Company believes that its operating model does not violate the business practices and business ethics of the Internet industry, and the information released is legal and compliant; there is also no evidence that it has used unfair means to obtain information that others can reasonably expect to obtain. business opportunities and disrupted the normal market order. According to the legislative spirit and protective purpose of the Anti-Unfair Competition Law, his behavior does not constitute unfair competition.
The Intermediate People's Court of Suzhou City, Jiangsu Province found after trial that the actions involved in the case constituted unfair competition, and the company should bear civil liability to stop the unfair competition, eliminate the impact and compensate for the losses. The judgment has come into effect and was selected as one of the “Top Ten Typical Cases of Judicial Escort of Digital Website Construction in Suzhou”.
(Source: CCTV Finance Weibo)
Reasons for the judgment:
The Intermediate People’s Court of Suzhou City, Jiangsu Province held that the judgment of whether the behavior of a flash promotion company constitutes unfair competition should be based on the competitive relationship, the use of network technology means, and the violation of other operators. Willingness and causing other legally provided network products or services to fail to operate normally, violating the principles of good faith and business ethics, disrupting the order of market competition and damaging the legitimate rights and interests of consumers, and lacking reasonable grounds are required for determination. The analysis based on the facts of this case is as follows:
First, there is a competitive relationship between the defendant Flash Push Company and the plaintiff Baidu Company. First of all, from the perspective of their industries, the plaintiff and defendant are both engaged in the Internet industry.Secondly, from the perspective of the technology used, the defendant’s flash push company provided the “Ten Thousand Words Dominate Screen” ranking service by renting a secondary directory of “high-weighted websites” to create promotional web pages, which directly affected the ranking of related keywords in the Baidu search engine. Ranking position. Thirdly, from the perspective of customer targets, the defendant’s flash push company’s website promotion clearly targeted the Baidu search provided by the plaintiff Baidu Company. Finally, from the perspective of the characteristics of Internet competition, Internet competition has distinct characteristics of traffic competition. The "Wanciba screen" ranking technology launched by Flash Push Company relies on Baidu search engine and survives in the search engine ecosystem. It has great influence on Baidu. User groups and trading opportunities are naturally competitive.
Secondly, the defendant Flash Push Company used network technology and other means to carry out the acts involved in the case. Mainly manifested in the following three aspects: first, the act of leasing secondary directories of "high-weight websites"; second, using technical means to generate a large number of keywords and non-manually written web content; third, the defendant quickly pushed the company to upload relevant pages Publish to the secondary directory of "High-Authority Websites".
Third, the behavior of the defendant Flash Push Company went against the wishes of the plaintiff Baidu Company and caused the network products or services of the plaintiff Baidu Company to fail to operate normally. On the one hand, the plaintiff Baidu has invested huge R&D resources in the Baidu search services it provides, especially the ranking of search results. Baidu also has legitimate and legitimate commercial interests in the derived commercial value of data in the search engine ecosystem. The "Wan Ci Ba Screen" ranking technology launched by the defendant Flash Push Company has harmed the legitimate interests of the plaintiff Baidu Company protected by the competition law and seriously violated the wishes of the plaintiff Baidu Company. On the other hand, the defendant's flash push company destroyed the normal inclusion and ranking order of the plaintiff Baidu's Baidu search engine, causing the Baidu search engine algorithm to be inaccurate; causing a waste of Baidu's machine performance and server resources; affecting the Baidu search user experience and reducing the user experience. Trust in Baidu search.
Fourth, the behavior of the defendant Flash Push Company violated the principles of good faith and business ethics. The defendant Flash Push Company did not adopt industry business practices to help its customers improve their search rankings. Instead, it used technical means to generate a large number of non-manually written web pages based on the needs of its contracted customers, and added the content of the above-mentioned web pages to the leased third. Among the three-party "high-weighted websites", loopholes in the Baidu search engine's inclusion and sorting rules are exploited to cause one or more search results containing related web pages to appear on the home page of Baidu's search results when Internet users trigger search keywords. This behavior of implanting relevant web pages in the secondary directories of "high-weight websites" to improve search rankings by "dominating the screen" exploits a loophole in Baidu's algorithm.
Fifth, the behavior of the defendant Flash Push Company disrupted the order of market competition and harmed the legitimate rights and interests of consumers. On the one hand, the flash push company has affected the search and ranking order of other operators using the Internet, affected the natural ranking order of "high-weight websites", and affected the management order of Internet information services. This is on the basis of illegally harming the legitimate operations of others. Acts that seek improper benefits for oneself and disrupt the order of market competition. On the other hand, flash push companies increase the cost of obtaining consumer information, affect consumers' user experience, infringe on consumers' right to know, and damage the legitimate rights and interests of consumers (network users).
Sixth, the defendant’s behavior of flash-pushing the company lacked reasonable grounds. Specifically, it manifests itself in the following two aspects: First, the behavior of the flash push company is a commercial behavior, and it continues to make profits through the behavior involved, rather than to protect social welfare or enhance consumer welfare. Second, the defendant’s flash promotion of the company was disruptive and exploited loopholes in Baidu’s algorithm rather than creating new algorithms or technologies that were beneficial to consumers.
To sum up, the essence of the behavior involved in the case is that it ignores the guidance of values on the grounds of technical neutrality, disrupts the healthy and orderly search ecology, and destroys the clean and honest cyberspace. Its behavior violates the principle of good faith and recognized business ethics. , which has caused damage to Baidu, network users, other Internet operators and the order of competition, lacks reasonable grounds, is unfair, and should be regulated by the Anti-Unfair Competition Law.
Source: Zhichanbao [5]
2. The use of the "pontoon guardrail" design patent in Nanchong's "Impression Jialing River" pontoon project was found to constitute an implied patent license.
Patent licensing behavior is an civil legal act. also has implicit circumstances. That is to say, although the perpetrator did not express his intention to license the patent in any express way such as language or writing, it can be inferred from his actions that he made an indication of his intention to license the patent. There are three conditions for the establishment of a patent implied license: In terms of subjective state, the patentee is fully aware that the design patent and the design involved in the case are the same design; in terms of objective behavior, the patentee has implicitly licensed the use of the design involved in the case through relevant previous actions. Appearance design; in terms of reasonable consideration, both parties have reached an agreement on the patent royalties and have fulfilled them.
Basic facts of the case:
The plaintiff Guangzhou Deli Yacht Terminal Engineering Co., Ltd. (hereinafter referred to as "Deli Company") is the patentee of the design patent called "Pontoon Guardrail". The application date of this patent is September 14, 2018, and the authorization announcement date is January 29, 2019. The designer is Liu Honghui, the legal representative of the plaintiff. The patent right is still within the protection period. The brief description of the patent records that the design key point lies in the shape of the pontoon guardrail, and the pictures or photos that best illustrate the design key points of the patent are three-dimensional views. The exterior design is a pontoon board with guardrails on both sides. From the left and right views, the guardrails on both sides are composed of a row of four consecutively arranged parallelograms . The length of the two borders parallel to the pontoon board is slightly wider than the other parallelogram. There are two borders, and both ends of the short border have parts that extend beyond the long border. Each parallelogram has a folded angle design on the acute side close to one side of the pontoon board, and between the two narrower frames there are multiple radial-like bars distributed from wide to narrow.
The plaintiff Deli Company claimed that the plaintiff obtained the design patent "Floating Bridge Guardrail" authorized by the State Intellectual Property Office in accordance with the law on January 29, 2019. The patent is currently stable and valid. The plaintiff discovered that the defendant Nanchong City Garden Management Office ( (hereinafter referred to as "Nanchong Garden Office"), China Construction Third Engineering Bureau Group Co., Ltd. (hereinafter referred to as "China Construction Third Engineering Bureau Company"), China Construction Investment Fund Management (Beijing) Co., Ltd. (hereinafter referred to as "China Construction Investment Company") , Shanghai Qihua Water Engineering Construction Co., Ltd. (hereinafter referred to as "Qihua Company") implemented the patented design scheme involved in the "Impression Jialing River" project without permission. Among them, the defendant Nanchong Garden Office was the tenderer of the project involved. The defendants China Construction Third Engineering Bureau Company and China Construction Investment Company are the general contractors of the project involved, and the defendant Qihua Company is the actual construction party of the project involved. The plaintiff believes that the above-mentioned actions of the four defendants have infringed on its patent rights and should be responsible for stopping the infringement. The four defendants argued that the designs they used in bridge construction were provided by Liu Honghui, the legal representative of the plaintiff, before the patent application date involved, and reasonable payment was made. The consideration is 360,000 yuan; the accused infringing design belongs to the existing design, and the actions implemented by the participating units in accordance with the design plan do not constitute infringement; the accused infringing design complies with the prior use rights situation stipulated in the " Patent Law " and does not constitute Infringement.
The Shanghai Intellectual Property Court held that the design used in the Nanchong Impression Jialing River Floating Bridge Project was licensed by the plaintiff and its affiliates, so it rejected all the plaintiff’s claims and appealed to the Shanghai Senior People’s Court. Court. The Shanghai Higher People's Court rejected the appeal and upheld the original judgment. The case was selected as the top ten judicial protection cases of intellectual property rights in Shanghai courts in 2021.
(Picture source: "Nanchong Broadcast" WeChat public account)
Reasons for the judgment:
The Shanghai Higher People's Court held that Nanchong City "Impression Jialing River" Wetland Protection Project pontoon project used pontoon boards that were consistent with the appearance of the patent involved. Whether the design infringes upon the patent rights involved in the case enjoyed by Deli Company, Deli Company’s true intention regarding the use of the patent involved in the case should be explored.
First, about subjective state analysis. Liu Honghui is the designer of the patent involved and the legal representative of Deli Company. He is also the main person in charge of the external claims of Deli Company, Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd., and Qingyuan Depu Floating Bridge Co., Ltd., and participated in the "Impression of Nanchong" Jialing River "Floating Bridge project discussion, planning and design to finalization of the entire process of project bidding; Deli Company is also a shareholder of Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd., and is the main person in charge, part of Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd. There is some confusion regarding core employees, office space and business operations. In the Nanchong "Impression Jialing River" pontoon project, although the company represented by Liu Honghui did not sign a written entrusted design contract with the representative of one party to the Nanchong "Impression Jialing River" pontoon project, the Nanchong Landscape Architecture Office conducted two separate design contracts in September and November 2018. A design fee of 360,000 yuan was paid to Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd. Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd. and Liu Honghui both confirmed that a full set of design documents and construction documents were delivered after receiving the corresponding design fees, and both parties can be identified A verbal agreement was reached and completed on the provision and price of the design of the "Impression Jialing River" floating bridge project in Nanchong, and the purpose of the oral agreement was to use the design on the "Impression Jialing River" floating bridge project in Nanchong.
Secondly, regarding objective behavioral analysis. The expression of intention in civil legal acts can be made implicitly. Patent licensing acts as civil legal acts also have tacit circumstances, that is, although the actor has not expressly expressed his intention to license the patent through language or writing, it can be inferred from his behavior that he has expressed his intention to license the patent. In this case, although Deli Company, Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd., and Qingyuan Depu Floating Bridge Co., Ltd. are different entities, Liu Honghui participated in different stages of the Nanchong "Impression Jialing River" floating bridge project on behalf of the three companies at the same time. The behavior can be regarded as official behavior on behalf of three companies at the same time. Combined with the equipment list submitted at the same time as the pontoon design and construction drawings of Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd., the signature of the Deli Company, Deli Company and Guangzhou Zhongtu Tuwen Tourism Planning and Design Co., Ltd. promoted the Nanchong "Impression Jialing River" floating bridge project on its company website. The promotional article also used photos of the construction site of the allegedly infringing floating bridge guardrails and other facts, which can be reasonably explained and inferred. Deli Company has implicitly permitted Nanchong Garden Office to use the design involved in the "Impression Jialing River" pontoon project in Nanchong through relevant previous actions. Nanchong Garden Office has obtained the design involved based on the relevant actions of Liu Honghui and the Deli Company he represents. relevant authorization, and generated reasonable reliance. Such reasonable reliance should be protected and should not be damaged by the internal arrangements of Deli Company and its affiliates regarding the patent application involved in the case and the denial of previous actions by the patentee, Deli Company. , otherwise it will cause unfair results and will not be conducive to the establishment of a stable and predictable market order.
again, regarding the analysis of reasonable consideration. As mentioned above, the Nanchong Garden Office and the company represented by Liu Honghui have reached an agreement and completed the payment for the use of the pontoon design involved in the Nanchong "Impression Jialing River" pontoon project. The Nanchong Garden Office through Guangzhou Zhongtu, an affiliated company of Deli Company, Cultural Tourism Planning and Design Co., Ltd. paid a reasonable consideration for the use of the design involved in the case.
In summary, Deli Company subjectively knew that the design involved in the case applied by it as the applicant and Liu Honghui as the designer was essentially the same design as the design of the pontoon involved in the case submitted to the Nanchong Garden Office by Guangzhou Zhongtu Cultural Tourism Planning and Design Co., Ltd. Objectively speaking, it implicitly permitted Nanchong Garden Office to use the design involved in the "Impression Jialing River" pontoon project in Nanchong through relevant previous actions. Nanchong Garden Office paid a reasonable consideration through an affiliated company of Deli Company, and Nanchong City's "Impression Jialing River" floating bridge project "The use of a design on the pontoon board that is consistent with the appearance of the patent involved in the case in the pontoon bridge project of the wetland protection project does not infringe the design patent involved in the case enjoyed by Deli Company.
Source: China Judgments Network [6]
Note:
[1] See the National Internet Information Office
http://www.cac.gov.cn/2022-06/14/c_1656821626455324.htm
[2] See the Ministry of Transport
https://xxgk.mot.gov.cn/2020/jigou/kjs/202205/t20220527_3657231.html
[3] See State Intellectual Property Office
https://www.cnipa.gov.cn/art/2022/6/2 /art_53_175850.html
[4]See the Supreme People's Court
https://www.court.gov.cn/zixun-xiangqing-360281.html
[5]See the Intellectual Property Bao
https://mp.weixin.qq.com/s /5oVdGt9S1rBrXpTXnHj30g
[6] See China Judgment Documents Network
https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=81dfc517ead24fe9ae7cae1b00a51b33
(swipe up and down to view)
main Editor: Sun Yan Yang Xiaoli
editor of this issue : Li Yunkai, Wang Yimin,
Tianyuan Intellectual Property Team has long been engaged in the field of intellectual property legal services, accumulated rich professional experience, developed valuable professional qualities, and has a deep understanding of the domestic judicial environment. It is a team that is good at handling various types of high-profile cases. A team of lawyers for difficult and complex cases. The team is composed of outstanding lawyers with excellent educational backgrounds, solid professional knowledge, and rich case-handling experience. The team lawyers have interdisciplinary knowledge reserves in law and intellectual property, and have experience in patent agency. For a long time, Tianyuan Intellectual Property Team has provided a large number of high-quality professional legal services to many domestic and foreign clients with its outstanding professional strength and rich business experience. It has undertaken a large number of major intellectual property cases with social influence and has won praise and respect from clients. . There are many cases in various fields of intellectual property that have become typical cases in the industry for innovating the application of laws, better protecting the rights and interests of rights holders, and promoting the improvement of judicial rules.
