News ……………………………………………………2 Special Focus …………….…………….…………4 Articles Amendments to the Several Provisions of the Supreme People's Court on Issues Relating to Application of Law to Adjudication of Cases of Patent Disputes in China………………………………………8 Influence of the Patterns on Design Patent Infringement in China ………………..………………..14 Influence of the Transparent Material on the Protection of a Design Patent in China ……………………………………………………..…...16 Private v Public Interests: The Principles of Protection ………………………….………………….………18 A Pre-emptive Strike ……………………………..…20 Copyright Registration in China …………………..22 32 DEC. 2015 1. OUR FIRM RANKED TIER 1 FOR PATENTS AND TRADEMARKS/COPYRIGHTS BY ALB CCPIT Patent & Trademark Law Office is ranked Tier 1 for both its patent and trademark/copyright businesses in ALB (i.e. Asian Legal Business) China IP ranking 2015. According to ALB China, May 2015 issue, CCPIT Patent & Trademark Law Office has worked on a number of patent infringement cases for several blue-chip clients. The firm is representing a prominent U.S. electronics maker in a string of patent infringement cases in China. It also helped BMW win a patent infringement suit against an individual, and is advising Abbott Laboratories on a series of patent infringement case. 2. OUR FIRM RANKED IN GOLD BAND BY WTR 1000 We are pleased to announce that we are again ranked in “Gold Band” for Chinese trademark prosecution and strategy by WTR 1000, the World’s Leading Trademark Professionals 2015. This honours especially the excellent work of the trademark team of the firm. During the past year, our trademark team had prosecuted many significant trademark cases for clients, including the typical cases recognised by the Supreme People’s Court, the Beijing High People’s Court and the Trademark Review and Adjudication Board. We had been for many years the only game player in the area. Although the landscape has become considerably more crowded recently, we maintain significant market share in the prosecution space. 3. CHINA TRADEMARK ASSOCIATION RANKED OUR FIRM “OUTSTANDING TRADEMARK AGENCY 2015” On October 16 to19, 2015, “China Trademark Festival 2015” was held in Haikou, Hainan Province. The Festival, focusing on the theme of “exploiting the trademark strategy, and developing brand economy”, was consisted of a variety of events and activities, such as the China Brand Exposition, the annual meeting of the China Trademark Association. During the Festival, China Trademark Association announced the appraisal of “Outstanding Trademark Agencies 2015” carried on by experts from the Selection Committee of Outstanding Trademark Agencies 2015. CCPIT Patent & Trademark Law Office, depending on its excellent professional competence and solid reputation in the area of trademark matters, has finally stood out from various candidates and been ranked as one of the “Outstanding Trademark Agencies of China 2015”. 4. THE LATEST UPDATES OF THE IP COURTS IN CHINA The Supreme People's Court, on September 9, 2015, released the latest updates of the Intellectual Property Courts in Beijing, Shanghai, and Guangzhou, which had been established by the end of last year. By August 20, they have received a total of 10,795 cases and decided 4,160. The three IP Courts have differed on the types of cases they received and decided due to their regional and jurisdictional differences. 2 NEWS Dec. 2015 News The 6,595 cases received by the Beijing IP Court, (5,622 first-instance cases, 973 second-instance cases), have the following characteristics: first, a high proportion of administrative suits (4116 cases), among which over three-quarters involve the patent or the trademark office; second, a high proportion of cases involve foreign parties, standing at 39.4% of total. The Shanghai IP Court received 1,052 cases (612 first-instance cases, 440 second-instance cases) with over half being copyright cases (582 cases). The Guangzhou IP Court received 3,148 cases (1,842 first-instance cases, 1,306 second-instance cases) with a high proportion of patent ones: 90.99% of firstinstance cases and 53.24% of total cases. By August 20, the three IP Courts have decided a total number of 4,160 cases, with the Beijing IP Court 2,348, the Shanghai IP Court 409, and the Guangzhou IP Court 1,403. Within nine months, the judges of the Beijing and Guangzhou IP Courts have each decided an average of over 100 cases, a significant increase in the efficiency of the IP courts. Currently, the Supreme People's Court is considering to establish a mechanism for dynamically adjusting the number of judges in IP courts. A second group of judges for the Beijing and Guangzhou IP Courts are either currently being or have already been chosen. What's more, the Supreme People's Court will initiate a pilot program in the three IP Courts, launching a Technical Investigator Mechanism to improve the efficiency and professionalism in IP lawsuits. 3 Dec. 2015 News 1. CASES OF OUR FIRM INCLUDED IN THE "10 INNOVATIVE CASES AND 50 TYPICAL CASES CONCERNING IPR PROTECTION IN 2014” The Supreme People's Court issued the "Top 10 IPR cases, 10 innovative cases and 50 typical cases concerning IPR protection in 2014" on April 20, 2014. Two cases represented by CCPIT Patent and Trademark Law Office were included in the "10 Innovative Cases". The case Apple Inc. v. the Patent Reexamination Board (i.e. the PRB) (Beijing High People's Court (2014) High Court (IP) Final No.2815) on the rejection of a design patent application represented by CCPIT Patent and Trademark Law Office was included in the 10 Innovative Cases in 2014 and the re-trial case concerning the trademark Reg. No. 3060409 "इ (ZF in Chinese)", with ZF LENKSYSTEME GMBH (ZF GMBH) vs. Trademark Review and Adjudication Board (TRAB) and Huichang Electrical Machinery Co., Ltd (Huichang Company) (Supreme Court (2014) Administration Retrial No.2) was elected as one of the 50 Typical Cases in 2014. Apple Inc. v. the PRB concerns whether GUI is patentable for a design patent. The Beijing High Court held that although the Guidelines For Patent Examination stipulates that the graph shown after the product is electrified shall not be granted a design patent, whether the design concerned is a patentable subject matter shall be examined according to Article 2 of the Patent Law, instead of according to the Patent Examination Guidelines. In applying a design patent for GUI, the applicant shall appropriately clarify which parts can be shown only after being electrified in the drawings, photos or description. The Court finally held that, a GUI, when combined with a physical object, is patentable for a design patent. In the retrial case ZF GMBH v. the TRAB and Huichang Company, the Supreme People's Court made an express interpretation to the term "the interested party" and made a judgment in favor of ZF GMBH. 2. TWO TRADEMARK ADMINISTRATION LITIGATION CASES OF OUR FIRM INCLUDED IN THE "ANNUAL REPORT OF THE SPC ON IPR CASES (2014)” The Supreme People's Court issued the "The Annual Report of the Supreme People's Court on Intellectual Property Cases (2014)" on April 21, 2015. Two Trademark Administration Litigation Cases represented by CCPIT Patent and Trademark Law Office were 4 Dec. 2015 Special Focus By the end of 2015, we would like to share some of our achievements with our readers here. Besides the huge number of cases for patent applications, trademark registrations as well as copyright registrations, we are also proud of our success in patent and trademark invalidation, patent and trademark administrative litigation and enforcement of IPRs. SPECIAL FOCUS included: 1) The administrative retrial case on the trademark “इ (ZF in Chinese)"; 2) The administrative retrial case on the trademark Forevermark. "The Annual Report of the Supreme People's Court on Intellectual Property Cases (2014)" has included 35 typical cases concerning intellectual property and competition concluded in 2014, from which 50 issues of general reference value are raised. The patent attorneys from CCPIT Patent and Trademark Law Office, relying on their extensive experience, profound understanding of laws as well as their close team work, have won the two cases discussed above. According to the abstract of the "Annual Report of the Supreme People's Court on Intellectual Property Cases (2014)", the two cases are prominent as following: The trademark "इ (ZF)" case clarifies the definition of the "real-party-in-interest" of prior right in Article 31 of the Trademark Law. We have reported on this case in a separate article. The trademark Forevermark case clarifies the factors needed to be taken into consideration in determining the similarity between Chinese and English trademarks. The Supreme People's Court held that in determining the similarity between Chinese and English trademarks, factors such as the cognitive competence for English trademark of the relative public, the relevance or equivalents of the meaning of the Chinese and English trademarks, the popularity and distinctiveness of the reference trademark and the actual application of the opposed trademark shall be taken into consideration. 3. TWO CASES OF OUR FIRM INCLUDED IN THE “10 INNOVATIVE CASES CONCERNING IPR PROTECTION IN 2014” BY THE BEIJING HIGH PEOPLE'S COURT The Beijing High People's Court issued the "10 typical cases and 10 innovative cases concerning IPR protection in 2014" tried by Beijing courts on April 15, 2014. Two cases represented by CCPIT Patent and Trademark Law Office were included in the “10 Innovative Cases”. Case 1: The Administrative Review Case on the Rejection of a Design Patent Application for a Portable Display Device with Graphical User Interface In this case, the Patent Reexamination Board (i.e. the PRB) upheld the Rejection Decision issued to the design patent application for a “Portable Display Device” applied by Apple Inc. Apple Inc. appealed the Decision of the PRB to the court. The court reversed the Decision of the PRB and held that whether the design concerned is a patentable subject matter shall be examined according to Article 2 of the Patent Law, instead of according to the Patent Examination Guidelines. The design concerned is essentially directed to a portable display device as a whole, and is a patentable subject matter though it incorporates GUI appearing solely when powered on. Interestingly, during trial of the case before the court, the SIPO amended its Examination Guidelines (version 2010). According to the amendment, GUI becomes patentable when it combines with a hardware device, such as a mobile phone. This case together with the amendment to the Examination Guidelines makes it clear that, GUI is protectable by a design patent at least to some extent in China. Case 2: The Administrative Review Case on the Rejection of Invention Patent Anti-hypersensitive Combination of Valsartan and Calcium Channel Blocker At issue here is a long-debated point in examination of a patent application, i.e. whether it is possible to submit to the SIPO at a later time experimental data 5 Dec. 2015 Special Focus and/or embodiments to meet the support, enablement or utility requirement for an invention patent for innovations in the biochemical field. A batch of patent applications were at least partially rejected by the SIPO for not providing in the application sufficient experimental data and/or embodiments while later submitted materials were denied by the SIPO. The second instance court, by reference to the provisions of Patent Examination Guidelines (1993 version), held that the applicant should be allowable to supplement experimental data and/or embodiments after filing the application, in order to prove the effect and feasibility of the invention. These experimental data and/or embodiments, although cannot be included into the application, can be reference information for the examiners in determining the patentability of the invention. Application of the Patent Examination Guidelines in effect 2000 violated the “law of nonretroactivity”. It is noted that the SIPO has actually deregulated its strict requirements on later submitted experimental data and/or embodiments for the kind of patent applications to some extent now. Conclusion: The above-mentioned cases will promote the Chinese patent protection system and provide guidance for later applications and examinations of similar cases. 4. TWO CASES OF OUR FIRM BEING ELECTED THE "TOP 10 REEXAMINATION AND INVALIDATION CASES IN 2014” During the Intellectual Property Promotion Week of 2015, the Patent Reexamination Board of the State Intellectual Property Office published the "Top 10 Reexamination and Invalidation Cases in 2014". Two cases handled by CCPIT Patent and Trademark Law Office attorneys were elected therein. 1. Invalidation Case against a Design Patent for Automobile (SUV) We are attorneys of the petitioner, Volkswagen. The ground for invalidation is that the design patent is not significantly different from the prior design. In particular, the design patent is, on the overall shape of the automobile, nearly the same as the prior design of Volkswagen, except for a few changes in detail. The attorneys of our firm refined the general principle of "overall observation, comprehensive assessment" in assessing validity of a design patent, making it much more operable, and argued that the right of a design patent is to protect a design with certain creativity and different designing features shall be apportioned to the overall visual effect differently. In the procedure of trying an invalidation case against a design patent, based on the condition of the prior designs, the conclusion shall be made after having objectively distinguished the innovative and non-innovative features of the products. 2. Invalidation Case against a Utility Model Patent "the Touch Graphics Structure of Capacitive Touch Pad” This case has been deemed as a landmark for the upstream manufactures in mobile internet terminal industrial chain. The Patent Re-examination Board has made a reasonable definition on the protection scope of the claim, declaring that for those components without specific name but widely existing in prior art, any change of the components' name shall not affect the understanding of those skilled in the art to its functions and purposes. 5. ONE CASE OF OUR FIRM INCLUDED IN THE "TYPICAL TRADEMARK 6 Dec. 2015 Special Focus REVIEW AND ADJUDICATION CASES IN 2014” The State Administration for Industry and Commerce issued recently the "Typical Trademark Review and Adjudication Cases in 2014". The MAYER • BOCHMB trademark objection review case represented by CCPIT Patent and Trademark Law Office was included in the "Typical Cases". In this case, the Trademark Review and Adjudication Board (TRAB) held that whereas the trademark applicant, i.e. the respondent in the case, had business contact with the petitioner and knew about the latter's trademark MAYER • BOCHMB before the registration of the opposed trademark, which is of exactly the same words and the same style as the petitioner's trademark, the behavior of the respondent was not a coincidence but violated the doctrine of good faith. Therefore, according to Article 15(2) of the Trademark Law, the registration of the opposed trademark shall not be approved. The respondent's claim of being the first one to use the trademark MAYER • BOCHMB was not supported by the TRAB for the lack of well-founded evidence. 6. TWO TRADEMARK CASES OF OUR FIRM HONOURED WITH THE “OUTSTANDING TRADEMARK CASES 2014-2015” From October 16th to 19th, 2015, “China Trademark Festival 2015” was held in Haikou, Hainan Province. During the Festival, the China Trademark Association launched the appraisal of Outstanding Trademark Cases 2014-2015. Two cases represented by CCPIT Patent and Trademark Law Office were included and published at the Forum on the Analysis of Typical Trademark Cases. The appraisal was launched to review the great events in trademark area from 2014 to 2015, setting the outstanding cases as criteria for the future. The experts from courts, colleges and trademark administrative agencies had taken six standards, namely, innovativeness, effectiveness, typicality, impact, demonstrativeness and reference value into the appraisal. The retrial case made by the Supreme People’s Court concerning the invalidation against trademark “Golden Fleece Logo” made it possible to register the trademark on core products of Brooks Brothers company in China and exempted the company from substantive infringement compensation. It is the first time for the Supreme People’s Court to identify “the interested party” that has the right to file an administrative suit to the court and has made a guidance for the “application of foreign laws”. In the MAYER • BOCHMB trademark objection review case, the applicant submitted not only the documents verifying its business relation with the opponent but also the evidence for prior use, which are completely in conformity with the applicable conditions stipulated in Article 15(2) of the Trademark Law, thus is a typical case against cybersquatting. Article 15(2) of the new Trademark Law has stipulated those behaviors that violate the doctrine of good faith, such as cybersquatting of a trademark by taking advantage of special relations with the real trademark owner, including contract relation, business relation and so on, offering a powerful legal weapon to safeguard the owner's prior right of use. It’s noteworthy that compared with the previous Trademark Law, Article 15(2) of the new Trademark Law has extended the relation between the two parties and clarified the conditions for a prior use. 7 Dec. 2015 Special Focus Introduction On Jan. 19, 2015, the Adjudication Committee of the Supreme People’s Court of China passed the Decision on Amending the Several Provisions of the Supreme People's Court on Issues Relating to Application of Law to Adjudication of Cases of Patent Disputes, according to which the amended Provisions (i.e. the Several Provisions of the Supreme People's Court on Issues Relating to Application of Law to Adjudication of Cases of Patent Disputes) will come into force on Feb. 1, 2015. This is the second time for the Supreme People's Court to amend the Provisions after it was promulgated on June 19, 2001. Only a slight amendment was made to the Provisions in 2013 for the first time. The amendments to the Provisions include mainly the amendments for adapting it to the present Chinese Patent Law (2009) and the amendments for clarifying several essential issues in determining patent infringement. This article will give readers a general overview of the amendments made to the Provisions firstly, and then will focus on the essential issues by referring to some recent cases before the Supreme People's Court or the rationale behind the amendments. An overview of the amendments to the Provisions 1. locus delicti in design patent infringement litigation Article 5 of the Provisions was amended so that the place of infringement where the people's court would have jurisdiction over the accused infringing act further includes the place where offering for sale of products incorporating the alleged design patent occurs. Note: Generally speaking, Article 5 of the Provisions provides that a lawsuit instituted against a patent infringing act shall be within the jurisdiction of the people’s court of the place where the defendant has its domicile or the place of infringement. The place of infringement includes both the place where infringing act takes place and the place where consequences of the infringing act arise. According to Article 11 of the present Chinese Patent Law, among the acts of infringing a design patent, “offering for sale” of a patented design is prohibited by the Law. Article 5 of the Provisions was therefore amended. 2. Submitting of a search report or an evaluation report for patentability Article 8(1) of the Provisions was amended to read, for a utility model patent filed before Oct. 1, 2009 (not including that date), any plaintiff who takes action against infringement may furnish a search report made 8 AMENDMENTS TO THE SEVERAL PROVISIONS OF THE SUPREME PEOPLE’S COURT ON ISSUES RELATING TO APPLICATION OF LAW TO ADJUDICATION OF CASES OF PATENT DISPUTES IN CHINA Dec. 2015 Articles ARTICLES by the patent administrative department under the State Counsel, for a utility model patent or a design patent filed after Oct. 1, 2009, any plaintiff who takes action against infringement may furnish an evaluation report on patentability made by the patent administrative department under the State Council. According to any trial need, the people's court may require the plaintiff to submit a search report or an evaluation report on patentability. If the plaintiff refuses to submit such a report without justa causa, the people's court may stay the case or rule the case by having the plaintiff bear the adverse consequences. Note: Since both utility mode patents and design patents are not substantially examined as to patentability before grant, there was a concern that the patent owner of a utility model patent or a design patent may make abuse of its right for unfair competition. As a response, Article 61(2) of the present Chinese Patent Law provides that where any infringement dispute relates to a patent for utility model or design, the people’s court or administrative authority for patent affairs may ask the patentee or any interested party to furnish an evaluation report on patentability made by the patent administration department under the State Council after having conducted search, analysis and evaluation of the relevant utility model or design, and use it as evidence for hearing or handling the patent infringement dispute. Said evaluation report on patentability is different from a search report: 1) it is officially issued by the State Intellectual Property Office like an office action and can only be issued once, 2) only the patent owner or a person in privity may ask for such an evaluation report, but any others may look up it once it was made by the SIPO. The court will generally refer to the search report or evaluation report on patentability to assess the validity of a utility mode patent or a design patent, so as to determine at its discretion, whether or not to stay the case if the accused infringer requests for invalidation of the alleged patent. In spite of this, the previous Provisions did not tell whether it is mandatory for the patent owner to submit a search report or an evaluation report on patentability and what legal consequences might be on the patent owner if he refuses to submit such a report. Amended Article 8(1) of the Provisions clarifies the role of a search report and evaluation report on patentability and will accordingly mitigate abuse of utility mode or design patent to some extent. 3. Stay of a case Article 9 item (1) of the Provisions was amended to read, in a patent infringement dispute case of a utility model or design patent received by the people's court, where the defendant files a request for invalidation of the patent within the reply period, the court may not stay the proceedings: (1) where in the search report or evaluation report on patentability furnished by the plaintiff there is no any ground for invalidating the utility model patent or design patent. Note: The amendment was made to take the evaluation report on patentability into consideration for the court to decide whether or not to stay a case in view of the present Chinese Patent Law and extends the previous cause of not staying a case when finding no “technical documentation leading to loss of novelty or inventiveness of the utility model patent” in a search report to when finding no “any ground for invalidating the utility model patent or design patent” in a search report or evaluation report on patentability. Further, although both the search report and the evaluation report on patentability will have the effect of being 9 Dec. 2015 Articles taken into consideration for deciding whether or not to stay a case, the evaluation report on patentability might be more recognised than the search report, since it is officially and more seriously issued by the State Intellectual Property Office. 4. Fines against counterfeiting Article 19 of the Provisions was amended to read, where there is counterfeiting of another person's patent, the people's court may impose civil liability in accordance with the provisions of Article 63 of the Patent Law. Where the administrative authority for patent affairs does not impose any administrative penalty, the people's court may impose civil penalty pursuant to the provision of Article 134(3) of the General Principles of the Civil Law, and the amount of the applicable fine in civil terms may be determined by reference to the provisions of Article 63 of the Patent Law. Note: Article 63 of the present Chinese Patent Law provides that, where any person passes off a patent, in addition that his illegal earnings shall be confiscated, he may be imposed a fine of not more than four times his illegal earnings and, if there is no illegal earnings, a fine of not more than RMB 200,000 Yuan. As compared with corresponding Article 58 of the previous Chinese Patent Law, which provides that a person passing off the patent of another person may be imposed a fine of not more than three times his illegal earnings and if there is no illegal earnings, a fine of not more than RMB 50,000 Yuan, Article 63 of the present Chinese Patent Law greatly improves the administrative fines which may be imposed against an infringer. 5. Damages for patent infringement a) Improved damages for patent infringement Article 21 of the Provisions was amended in order to adapt to the present Chinese Patent Law, which enhances protection of patent rights by increasing the damages for patent infringement, and reads, Where the losses of the patent owner or the income of the infringer is difficult to determine, the people's court may, where there is a patent royalty that may be referred to, reasonably determine the amount of compensation according to the type of patent right, the nature and circumstances of the infringing act, the nature, extent and time of a patent license etc. with reference to times of the patent royalty; where there is no patent royalty to be referred to or the patent royalty is obviously unreasonable, the people's court may, according to factors such as the type of the patent right, the nature and circumstances of the infringing 10 Dec. 2015 Articles act, determine the amount of compensation according to Article 65(2) of the Patent Law. Note: Article 65(2) of the present Chinese Patent Law reads, Where it is difficult to determine the losses suffered by the right owner, the profits the infringer has earned and the exploitation fee of that patent under a contractual license, the people’s court may award damages of not less than RMB 10,000 Yuan and not more than RMB 1,000,000 Yuan in light of such factors as the type of the patent right, the nature and the circumstances of the infringing act. The above defined statutory damages, which is granted by the court fully at the judges’ discretion in view of certain factors of the case, were improved under Article 65(2) of the present Chinese Patent Law, so does in the amended Provisions. This is totally in response to the criticisms that the damages granted to a patent owner in a patent litigation is too little to compensate the damages to the patent owner and even the lawyer’s fees. b) Additionally grantable lawyers' fees Article 22 of the Provisions was amended to read, Where the right owner claims that he has paid reasonable expenses for stopping the infringing act, the people's court may additionally determine compensation besides the compensation determined according to Article 65 of the Patent Law. Note: Article 22 of the Provisions was amended by giving the patent right owner the probability to additionally claim expenses for stopping the infringing act, especially the lawyers’ fees. This will encourage patent owners to enforce their patent rights positively. Insights into amendments to Article 17 of the Provisions Article 17 of the Provisions was amended to read, "The protection scope of the patent right for invention or utility model shall be determined by the contents of the claims. The description and the accompanied drawings may be used to interpret the contents of the claims" prescribed in Article 59(1) of the Patent Law means that the protection scope of the patent right shall be determined by all the technical features recited in the claims, including the scope as determined by the features equivalent to the technical features. An equivalent feature refers to the feature which perform substantially the same function, in substantially the same way to achieve substantially the same result as the feature recited in the claim, and which can be contemplated, at the time of the accused infringing act, by an ordinary person skilled in the art without inventive labour. The amendments to Article 17 of the Provisions touch upon several critical issues in patent infringement litigation 1. Application of the all-elements-rule "All-elements-rule" in patent infringement as defined in Article 17(1) of the Provisions can be more definitely found in Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning Adjudicating Patent Infringement Disputes (effective from on 1 January 2010), which reads, When a people's court adjudicates whether an accused infringing technical solution falls into the protection scope of a patent right, it shall examine all the technical features recited in the claim asserted by the right owner. If the accused infringing technical solution includes all the technical features or equivalent technical features recited in or as those recited in the claim, the people's court shall determine that the accused infringing technical solution falls into the protection scope of the patent right. When comparing the technical features of the accused infringing technical solution and all the technical features recited in the claim, if one or more 11 Dec. 2015 Articles of the technical features recited in the claim are missing, or if one or more of the technical features are not identical or equivalent, the people's court shall determine that the accused infringing technical solution does not fall into the protection scope of the patent right. From the above, it is clear that all of the features in a claim shall be considered in patent infringement assessment, regardless whether said features are indispensable technical features necessary for the purpose of the invention or not. The Provisions therefore was amended so as to delete the limitation of "indispensable" technical features in applying the all-elementsrule. The "all-elements-rule" clearly denies application of the doctrine of 'superfluity establishing" in China, under which doctrine, features which are obviously not necessary for the purpose of the invention (i.e. not indispensable features) in a claim, may be neglected for finding patent infringement. This will essentially broaden the protection scope defined by a patented claim and impair the public notice function of the claim. Regarding application of the all-elements-rule in patent infringement litigation, the Supreme People's Court have made some significant cases in refining its particular implication. a) All features recited in a claim shall limit the protection scope In Dalian Renda New Wall Building Materials Plant v. Dalian Xinyi Building Materials Co., Ltd., Dalian Renda being the exclusive licensee of the patented invention, "a concrete thin-walled cylinder structure" sued Danlian Xinyi for patent infringement. Said concrete thin-walled cylinder structure consists of a cylinder tube and bottoms for closing both ends of the cylinder tube. The cylinder tube and bottoms contain separately "at least two or more layers" of glass fiber clothes. The accused infringing product of Dalian Xinyi differs from the patent in that its cylinder tube contains solely a layer of glass fiber cloth and its bottoms contain no glass fiber cloth. Both the first and second instance courts supported the claim of the plaintiff and held the defendant infringed the plaintiff's patent right under the doctrine of equivalents. In retrial, the Supreme People's Court held that, "All of the technical features recited in the independent claim by the patentee are indispensable technical features that should not be ignored ... Only when all the technical features recited in the claims are given comprehensive and full respect, can confusion of public by unforeseeable changes in the contents of the claims be avoided and the certainty of legal rights be maintained so that the proper functioning and the value realization of the patent system can be fundamentally guaranteed." The Supreme People's Court therefore held that the accused infringing product is different from the patent in view of the aforesaid differences and doesn't fall within the protection scope of the patent right. The articulation of the Supreme People's Court, though not absolutely, essentially ruled out the application of the doctrine of superfluity establishing in adjudication of patent infringement. The Supreme People's Court also denied application of the doctrine of equivalents when the alleged claim has clearly recited "at least two or more layers" of glass fiber clothes, while the accused infringing product contain solely a layer of glass fiber cloth or no glass fiber cloth. b) Restriction of use environment features In Shimano Co., Ltd. v. Ningbo Richi Industry & Trade Co., Ltd., claim 1 of the patent concerned calls for a bicycle rear derailleur bracket for connecting a rear derailleur to a bicycle frame, and includes two so called "use environment features", i.e. the features in the claim defining the background or conditions under which the invention is employed, 1) the structural features in relation to the bicycle bracket and 2) the structural features in relation to the 12 Dec. 2015 Articles rear derailleur. By reviewing the file wrapper of the alleged patent, the Supreme People's Court found that, the claimed bicycle rear derailleur bracket must be used with the rear fork end of the bicycle frame and with the rear derailleur with the defined structural features. With regard to the two use environment features, the Supreme People's Court held that, "use environment features already recited in a claim are indispensable technical features of the claim and function to limit the protection scope of the claim." and that "generally, use environment features in a claim should be interpreted as that the claimed subject may be used in the environment rather than must be used in the environment, but the use environment features should be interpreted as the claimed subject must be used in the environment if a person skilled in the art can be explicitly and reasonably informed that the claimed subject must be used in the environment after reading the patent claims, the description and the file wrapper." In this case, although the two use environment features are said "must be used in the environment" features, the Court found that the accused infringing product is necessarily used in commercial with the bicycle bracket as defined in the alleged claim, and necessarily presents the same assembling position features as in the alleged claim after assembling, besides having the other features of the alleged claim, the Court held that the accused infringing product falls into the protection scope of the alleged claim and constitutes infringement. c) Restriction of the title of the claimed subject matter In Xinghe Industry Co. Ltd. of Harbin Institute of Technology v. Jiangsu Runde Pipeline Co. Ltd., the Supreme People's Court held that, "in determining the protection scope of a claim, the title of the claimed subject matter recited in the claim should be considered, and its practical limitation depends upon the impacts imposed on the claimed subject matter by the title." In this case, the Court, by constructing the technical solutions of claims 2 and 6, found that, the title of the subject matter of claim 2, which defines "a process for manufacturing the drainage pipeline of steel strip reinforced plastics according to claim 1", and the title of the subject matter of claim 6, which defines "an apparatus for manufacturing the drainage pipeline of steel strip reinforced plastics for implementing the process according to claim 2 "would have essential impacts on claims 2 and 6 by referring to a preceding claim and therefore would have limitation to the claimed subject matters. 2. Timing in application of the doctrine of equivalents Doctrine of equivalents effectively extends the protection scope of a patent beyond that defined literally. "The proper time for evaluating equivalency and thus knowledge of interchangeability between elements is at the time of infringement, not at the time the patent was issued." A very important consideration regarding doctrine of equivalents is the after-arising technology.“ The doctrine of equivalents is necessary because one cannot predict the future. Due to technological advances, a variant of an invention may be developed after the patent is granted, and that variant may constitute so insubstantial a change from what is claimed in the patent that it should be held to be an infringement.” However, for a long time, in China, it was not clearly prescribed by laws or judicial interpretations the timing in determining patent infringement under the doctrine of equivalents. While for regular product and process claims, the courts took the time of infringement as the critical date for evaluating equivalency, for means-plus-function claims, the courts were not unified in application of the doctrine of equivalents as far as the critical date is concerned. Most courts kept silent on it, while some courts applied additional restriction on the doctrine of equivalents re means-plusfunction claims. Article 17(2) of the Provisions clarifies that, whatever the type of the features in a claim, equivalence under the doctrine of equivalents is evaluated at the time of infringement.⚜ 13 Dec. 2015 Articles In a retrial case before the Supreme People's Court of China, Great Wall Food Ltd. of Lanxi City (requester for retrial, defendant of the first instance) v. Chen Chunbing (plaintiff of the first instance), Beijing MinshengJiale Business Management Ltd. (defendant of the first instance), Supreme Court (2014) Min Shen Zi No. 438, the Supreme Court rejected the retrial request of the defendant, Great Wall Food, and held that where the shape of the accused product is similar to that of the product incorporating the alleged design patent, the presence of patterns on the accused product shall not bar the court to find design patent infringement. In the retrial request, Great Wall Food alleged that, 1) The design of the arc concave can body of the alleged design patent is a common design in the art. 2) The methods and principles for judging design patent infringement differ from those for patents for inventions and utility models. Even if the accused product contains all of the design features of the alleged design patent, if the additional design features on the accused product would cause a different visual effect from the design patent, the accused product doesn't fall within the protection scope of the alleged design patent. The alleged design patent concerns purely the shape of the product without any patterns, and shall not cover products including a combination of "the shape and the patterns". In this case, the accused product is different from the alleged design patent in shape and additionally contains patterns. It creates a visual effect significantly different from the alleged design patent, and therefore doesn't infringe the alleged design patent. The Supreme Court found, both the accused packaging can and the product incorporating the alleged design patent are packaging cans for foods and are products of the same category; the differences between the two lie in that, 1) the cross section of the body of the accused packaging can is substantially in an oval shape with eight symmetrical concaves, while the cross section of the body of the product incorporating the alleged design patent is substantially in an oval shape with four symmetrical concaves; 2) the accused packaging can presents patterns on it, while the product incorporating the alleged design patent has no patterns. At issue here is whether the design of the accused packaging can is identical with or similar to the alleged design patent, and whether the existence of the patterns on the accused packaging can will influence the finding of a design patent infringement. The Supreme Court held, The accused packaging can and the product incorporating the alleged design patent both are substantially oval in their cross sections and the symmetrical concaves make the body contours of the two present a wave configuration. Although the accused packaging can presents additionally four concaves which make the overall visual effect of its body contour change slightly, with the level of knowledge and the ability of 14 Dec. 2015 Articles INFLUENCE OF THE PATTERNS ON DESIGN PATENT INFRINGEMENT IN CHINA cognizance of an ordinary consumer, said local variation does not constitute an essential difference, and is insufficient to differ the shape of the accused product from that of the product incorporating the alleged design patent. Since the overall shapes of the accused product and the product incorporating the alleged design patent are all determined by the cross sections thereof, while the cover and the handle of the accused product are substantially identical with those of the product incorporating the alleged design patent respectively, the accused packaging can is similar to the alleged design patent as far as their shapes are concerned. Regarding the influence of the patterns on the body of the accused product, the Supreme Court held, The drawings of the alleged design patent show only the shape of the product without patterns. This implies that the protection scope of the alleged design patent covers only the shape of the product excluding patterns. Despite that the accused product contains patterns on its body, while the alleged design patent contains no patterns, in view of the fact that the protection scope of the alleged design patent covers only the shape of the product, and the shape of the body of the accused product is similar to that of the product incorporating the alleged design patent, the second instance court did not err in adjudicating that the accused product falls within the protection scope of the alleged design patent. According to Article 2(4) of the Chinese Patent Law (2008), design means any new design of the shape, the pattern, or their combination, or the combination of the colour with shape and/or pattern, which creates an aesthetic feeling and is fit for industrial application. Generally, when assessing whether an accused product is similar to the design patent so as to constitute design patent infringement, the test of "overall observation and comprehensive judgement" shall be followed. That is, all three elements of a design, i.e. the shape, the pattern and the colours if any shall be considered comprehensively. In spite of the above test, the court will consider effectively protecting the innovation or contribution of the designer made to prior designs during a design patent litigation. Some courts have made it clear that, when the design patent claims solely the shape of a product, it excludes others from making a product in the identical or similar shape with or without patterns and/ or colours. Especially, when a design patent contains solely the shape of a product, while the accused product contains both the shape and the patterns, the later falls within the protection scope of the design patent.⚜ 15 Dec. 2015 Articles Where a product of the same or similar category to the product of the design patent uses a design which is identical or similar to the granted design patent, the people’s court shall determine the alleged infringing design patent falls into the scope of protection of design patents of Article 59(2) of the Patent Law - Article 8 of the Interpretation of the Supreme People’s Court on Several Issues Concerning Adjudicating Patent Infringement Disputes (2010) For a Chinese design patent application, if the applicant wants to claim protection of the visual effect of a transparent material, he or she shall indicate this clearly in the brief description with the drawings or photographs showing the claimed design. Regarding the protection scope of a design patent with a transparent portion, the Guidelines for Patent Examination clearly states that the internal elements such as the shape, the patterns and the colours viewable through the transparent materials constitute a portion of the claimed design. What if the design patent doesn't specify a transparent material/portion, while the accused product is transparent at a portion thereof? The Supreme People's Court addressed this issue in Shenzhen EMOI Lifestyle Co., Ltd.(requester for retrial, plaintiff) v. HAN Lu (defendant),Supreme People's Court (2014) Min Shen Zi No. 1367. Shenzhen EMOI Lifestyle, the plaintiff of the first instance and the exclusive licensee of Chinese design patent No. 200830106916.0for a "water cup" (please refer to the attached figure), was not satisfied with the decision ((2014) Shan Min San Zhong Zi No. 00010) of Shanxi High People's Court which rejected its infringement claim against HAN Lu and requested for retrial with the Supreme People's Court. One of the key issues in debate relates to the influence of the transparent material/portion of the product to the determination of the design patent infringement. Shenzhen EMOI Lifestyle alleged that, The design of the cup lid incorporated in the alleged design patent is unique. It is a significant feature of the alleged design patent over other water cups in the market, and is also are markable indicator for ordinary consumers to identify the water cup. The cup lid of the accused product is completely identical with that of the alleged design patent. Meanwhile, the cup body of the alleged design patent is a common design in the art. The accused product includes additionally an outer cup body portion around the cup body, which is made of a transparent material and in the same shape as the inner cup body portion, and is also a common design. Although the alleged design patent doesn't indicate that its cup body is made of a transparent material, it doesn't exclude use of a transparent material as its cup body. The accused product therefore is similar to the alleged design patent and falls within the protection scope of the alleged design patent. The Court opined that, The protection scope of a design patent shall be determined by the design of the product as shown in the drawings or photographs. The brief description may be used to interpret the design of the product as shown in the drawings or photographs. According to the Guidelines for Patent Examination, if the product incorporating the claimed design is made of a transparent material or a new material with special visual effect, the applicant shall indicate it when necessary. If the granted design patent doesn't specify the above in the brief description, it implies that, on one hand the 16 INFLUENCE OF THE TRANSPARENT MATERIAL ON THE PROTECTION OF A DESIGN PATENT IN CHINA Dec. 2015 Articles patentee doesn't want to specify the material for manufacturing the product and doesn't exclude use of a transparent material; on the other hand the patentee doesn't claim a unique design brought by the product made of a transparent material or a new material of special visual effect. In this case, when assessing whether the accused product made of a transparent material or a new material of special visual effect is identical with or similar to the alleged design patent, Article 11 of the Interpretation of the Supreme People's Court on Some Issues Concerning the Application of Laws to the Trial of Patent Infringement Disputes (Judicial comprehensive judgment should be made in view of the overall visual effects of the design based on the design feature(s) of the patented design and the accused infringing design when determining the identity or similarity of designs. If the accused product only simply changes the material of manufacture based on the alleged design patent, and its overall visual effect is not different or substantially different from the alleged design patent, said accused product falls within the protection scope of the alleged design patent. If the special use of a material brings the accused product a different overall visual effect from the alleged design patent, the two are not similar. The internal structure viewable through the transparent material, as one part of the design of the accused product, shall be considered when assessing the similarity between two designs. In this case, the alleged design patent claims the design of a product consisting of a cup lid and a cup body. The cup body is in the shape of a slightly reversed frustum of a cone, with the cup lid being a cylinder bigger than the cup body slightly in their diameters and having a projected hoop for wristband. The accused product is a green water cup. The cup lid thereof is substantially the same as that of the alleged design patent, and the cup body thereof is consisted of an inner layer and an outer layer. The outer layer is transparent and a consumer can see the green inner cup body through it. The accused product has a cup lid in a shape close to that of the alleged design patent. But it has a two layer design with a transparent outer cup boy portion as the outer layer, which makes its overall visual effect different from the alleged design patent. The trail judgement didn’t err in adjudicating that the accused product is not identical with nor similar to the alleged design patent. Since both the cup lids and the cup bodies of the accused product and the product incorporating the alleged design patent have influences on their overall visual effects, the allegation of Shenzhen EMOI Lifestyle that the cup body of the accused product is a common design and the cup lid is of significance in identifying the water cup is not supported by evidence. Meanwhile, although the alleged design patent doesn’t exclude use of a transparent material, as discussed before, the accused product, by using a transparent material locally, causes a visual contrast between the transparent portion and the non-transparent green portions and further causes an obviously different overall visual effect from the alleged design patent. Therefore, the allegation of Shenzhen EMOI Lifestyle that the accused product falls within the protection scope of the alleged design patent in spite of the transparent material used by the accused product doesn’t stand. Taking advantage of the multiple design application practice in China, an applicant may include more than one design in a single design patent application, which will provide a protection scope equal to the sum of the protection provided by each of the designs. When a portion of a design might be transparent or when a competitor may design around by changing the material of the claimed design, it is an efficient approach to include the designs with varied materials into a single design application.⚜ 17 Dec. 2015 Articles Dec. 2015 Articles In 2015, two intellectual property cases in China provoked widespread attention. The first concerned infringement of the “Xin Bai Lun” ("New Balance" in Chinese) trademark. In 1994, p l a i n t i f f Z h o u L e l u n a p p l i e d t o r e g i s t e r "BaiLun" (trademark no. 865609) to protect “clothing, shoes, hats, socks” in class 25, and obtained the trademark in 1996. In 2004, the plaintiff also applied for "Xin Bai Lun" (trademark no. 4100879) in respect of “clothing, shoes, etc” in class 25, receiving the trademark registration in 2008. US company NewBalance's affiliate in China, i.e, the defendant in this case, New Balance Trading (China), has sold more than RMB 1 billion ($164,000) worth of Xin Bai Lun sports shoes in China since July 2011. In the trial of first instance, the Intermediate People's Court of Guangzhou City held that New Balance had used the similar mark in a way that would cause market confusion and disorder, so it had infringed the plaintiff's trademark rights. Case two dealt with the refusal to register the trademark "Wechat". In November 2010, Trunkbow Asia Pacific (Shandong) applied for "Wechat" (trademark no. 8840949) in respect of the services “message sending, telecommunication information, communications by telephone, etc” in class 38. On January 21, 2011 (later than the date of application for the "Wechat" mark), internet service provider Tencent launched its Wechat instant messaging service. In November 2014, users of Tencent’s Wechat service had exceeded 800 million and it has become a very popular mobile phone tool in China. The Beijing Intellectual Property Court, which ordered that the "Wechat" trademark (no. 8840949) is refused, said its decision was due in part “to maintain the cognition already formed by the huge group of Wechat users and avoid great social costs likely to be incurred by change of such cognition”. "It is not difficult to conclude that under China's current trademark system protecting the private interests of trademark owners' prior applications and registrations is a general principle.” Why was the earlier applied-for and registered trademark protected in the case of Xin Bai Lun, while the prior trademark application was invalidated by the court in the case of Wechat? The similar case facts and different results show different levels of protection for private and public interests by Chinese trademarks. 18 Dec. 2015 Articles PRIVATE V PUBLIC INTERESTS: THE PRINCIPLES OF PROTECTION Public v private interests The case of Xin Bai Lun demonstrates the general principle of protection for private interests by Chinese trademarks. The "principle of prior application" is implemented for Chinese trademarks. A trademark applied for and registered earlier can withstand the same trademark or similar trademarks used for the same or similar goods later. For example, in the case of Xin Bai Lun, the scale of the defendant's use of "Xin Bai Lun" exceeded that of the trademark registrant, i.e, the plaintiff. Consumers actually had closely associated "Xin Bai Lun" with the defendant's sports shoes, and reverse confusion had occurred in the market. However, in consideration of the need to protect the trademark owner's private interests and follow the principle of prior application, the defendant's act should still be recognised as infringement. The case of Wechat demonstrates the principle of exception for protection of public interests by Chinese trademarks. In the case of Wechat, Trunkbow applied for the trademark first and Tencent used the mark later. However, the particularity of this case is that although Tencent used "Wechat" after Trunkbow's application for the term, the use was on an exceptionally large scale and the nature of it not only related to the individual interests of Tencent or Trunkbow, but also bears on the economic, political and cultural life of hundreds of millions of Chinese consumers. Unlike the "Xin Bai Lun" mark, which involves only private interests, the "Wechat" trademark has gone beyond the scope of private interests and entered the domain of public interests. In weighing protection of public and private interests, the court chose to protect public interests and refused registration of Trunkbow's trademark "Wechat". By comparing the above two cases, it is not difficult to conclude that under China's current trademark system protecting the private interests of trademark owners' prior applications and registrations is a general principle, and protecting public interests related to trademarks is an exceptional principle. The precondition of the exceptional principle is that the scale of trademark use is huge and the trademark relates not only to its user's private interests but also to the public's common interests. The "Wechat" trademark in this case is an example.⚜ 19 CCPIT Patent & Trademark Law Office Dec. 2015 Articles The Guangdong High Court heard the “Xin Bai Lun” case appealed by the New Balance on Nov. 5, 2015 (see the picture below). Because the application of a pre-trial preliminary injunction may stop infringement quickly, it is usually regarded as an effective means to stop patent infringement, and pre-trial preliminary in junctions are available under Chinese patent law. However, in the judicial practice in China, it is quite rare that Chinese courts grant pre-trial preliminary injunctions in patent infringement cases. For example, in the Beijing area, no preliminary injunction order was granted in patent infringement cases before 2013. The major reason is that it is difficult to determine whether "irreparable damage" has been caused, as that is a pre-condition for grant of a pre-trial preliminary injunction. The situation changed in 2013 in a patent infringement case tried by the Beijing Third Intermediate People's Court between Abbott Trading (Shanghai) and two Chinese companies. Abbott is the licensee of Chinese design p a t e n t n u m b e r ZL200730158176.0, titled "Container", and was granted the right to file the lawsuit against alleged infringers. Abbott filed a pre-trial preliminary injunction request with the Beijing court once it found the two Chinese companies had infringed the patent. The court believed the "irreparable damage" requirement was met and granted the pre-trial preliminary injunction. The court believed that the two defendants sold the infringing milk powder containers to milk powder manufacturing companies on a wholesale basis, and that the alleged infringing containers, containing milk powder, would then be sold to the end users. The court found that every connection in the sales chain may constitute infringement of the concerned patent right. It added that the loss or damage may be expanded and infringers may grow in number and sales links may rise, thereby increasing the cost and difficulty for Abbott of protecting the patent right. Meanwhile, the patent is a design patent for a container, and the patent term is just ten years. The design of a container changes rapidly. The continuation of infringing activity would greatly affect the implemen- 20 Dec. 2015 Articles A PRE-EMPTIVE STRIKE tation of the patent right of Abbott. Therefore, irreparable damage would be caused to Abbott if the infringement were not stopped immediately, so a preliminary injunction order was granted by the court. After the issuance of the preliminary injunction, the case was settled among the parties. This case was recognised by the Supreme Court in April 2014 as one of the five typical cases, which shows that the Supreme Court had affirmed and supported the Beijing court's standard on the determination of “irreparable damage”. What is “irreparable damage”? In February 2015, the Supreme Court published a proposed judicial interpretation of some legal issues concerning intellectual property and unfair competition cases, and sought public opinions. In the draft interpretation, the Supreme Court tried to clarify the instances of “irreparable damage”. For example, in article 8 of the interpretation, it is pointed out that irreparable damage occurs when it cannot be cured or calculated by money. Examples may be as follows: • Occurrence or continuation of the act would seize the petitioner's market share or force the petitioner to implement a low price to engage in business, thereby seriously undermining the petitioner's competitive advantage; • It would lead to subsequent infringements being difficult to control, and significantly increase the damage caused to the petitioner; and • It would cause harm to the personal right of the petitioner. The following situations are generally not regarded as “irreparable damage” being caused to the petitioner: (i) The petitioner knows or should know the existence of the act but makes unreasonably delays in seeking judicial relief; (ii) There are no reasonable grounds for enforcing the relevant IP rights; and (iii) Damage caused to the petitioner may be easily calculated in money. Although the above proposed judicial interpretation has not yet been finally approved and implemented, a guide has been given on the determination of what is “irreparable damage”. We believe it would be more clear and operational with respect to the meaning of "irreparable damage" in patent infringement cases in the future. It could be expected that there will be more pre-trial preliminary injunction orders being granted in patent infringement cases by Chin e s e c o u r t s i n t h e future.⚜ 21 Dec. 2015 Articles China is a signatory country of the Berne Convention the Universal Copyright Convention, and several other important international treaties in respect of intellectual property rights. As in many other countries, copyright registration is a voluntary procedure in China. Copyright shall exist from the date on which the creation of a work has been completed or from the date on which the development of a software product has been completed. Since a copyright shall exist automatically when a work or software is completed, why do people need to apply for copyright registration? The nature and effects of applying for a copyright registration in China are: • It is a preliminary proof of the registered information. Unless there is contrary evidence, the registered facts or deeds are deemed true; • It can be used as a certificate of rights to guarantee transaction security in an assignment of a work/software or a licence for using a work/software; • It can be taken as prima facie evidence in claiming damage to an infringer or in a litigation so as to efficiently lighten the burden of proof of the copyright owner and reduce the lawsuit cost; • In many copyright infringement cases, such as the cases in relation to the Chinese animation “Pleasant Goat and Big Big Wolf”, the copyright registration certificates have been taken as the main evidence to prove the rights of the copyright owner; • Copyright registration certificates can also be used as evidence to prove prior rights in trademark oppositions, trademark cancellations, and administrative proceedings, etc; • When multiple transfers occur, the assignment deed having been registered has the effect of acting against the third party; and • The software copyright registration certificate is an important factor for the identification of a software product, software enterprise or high & new technology enterprise and for software enterprises to enjoy a preferential tax policy. Two kinds of registration When applying for copyright registration with the Copyright Protection Center of China (CPCC), there are two kinds of registration: for the original state of the rights, and for change of rights. Copyright registration for the original state of the rights is referred to as “copyright registration”. The registered information mainly includes the title of the work, name of the author, name of the copyright owner, date of completion and date of the first publication, etc. The copyright registration applies only to the original acquisition of a copyright, not to the acquisition of a copyright through assignment. Registration for change of rights, also referred to as “copyright contract recordation”, includes contract recordation for copyright assignment and contract recordation for licensing. The recorded information mainly includes the title of the work, names of the assigner/licensor and assignee/licensee, the rights that have been transferred, the date of the assignment, or the manner of exploitation, territory and duration of the licence. The registration is not a premise of the effectiveness of the assignment/licence. In order to apply for a copyright registration in China, the following documents are required. 22 Dec. 2015 Articles COPYRIGHT REGISTRATION IN CHINA • Application form, which shall be filled through the online system of CPCC; • Sample of the work/source program of the software; • Description of the work/instructions of the software in Chinese; • Proof of identity of applicant. If the applicant is an individual, a copy of the ID or passport shall be provided; if the applicant is an entity, a copy of the certificate of incorporation/business registration shall be provided. For copyright registration for software, the copy of the certificate of incorporation/business registration of a foreign entity shall be notarised by the notary or legalised by the Chinese Embassy in the foreign country; • Proof of ownership, such as a copy of the contract between the author and the applicant in the case that the author is not the copyright owner, or other relevant documents, such as a statement made by the author; and • Power of attorney, which shall be provided if the copyright registration is filed through an agent. Features of copyright When filling in the application form, the applicant shall indicate the type of ownership of the copyright, which is different under different circumstances according to the provisions of the Copyright Law of the People's Republic of China. For example, copyright in a work generally belongs to its author (one or more individuals); however, in the case that a work is created under the auspices and according to the intention of a legal entity, which bears responsibility for the work, the copyright in the work shall belong to the legal entity; as to the work created in the course of employment or under commission, the ownership of the copyright can be agreed upon in a contract between the employer and the employee or between the commissioning party and the commissioned party. The term of protection of the copyright in a work under different types of ownership is also different. In respect of a work in which the copyright is enjoyed by an individual, the term of protection of the property rights is the "life plus 50 years", expiring on December 31 of the 50th year after the author's death. For works in which the copyright is owned by a legal entity, the term of protection shall be 50 years, expiring on December 31 of the 50th year after the first publication of the work. When filling in the application form, the applicant also needs to provide the date of the completion of the work and the date of the first publication if it has been published. In case the applicant has difficulty in providing an accurate date of the completion of the work, a vague date like “2005” or “October 2005” can be accepted. The date of the first publication must be an accurate date such as “October 1, 2005”. In practice, the vague date of completion shall be deemed to be the last date of that year, e.g, December 31, or the last date of that month, e.g, October 31, 2005. In such a case, the presumed date of completion would be later than the date of the first publication. The applicant will need to watch out for such a problem. When copyright of a work is acquired through assignment, the applicant shall not apply for the copyright registration, but the copyright contract recordation. When applying for the copyright contract recordation, instead of the date of the completion and the date of the first publication, only the date of the assignment will be recorded on the Registration Certificate. If the application documents meet the requirements, it will take about 30 working days to obtain a copyright registration certificate from the date of the submission of the application documents to CPCC.⚜ 23 Dec. 2015 Articles 24 Dec. 2015 The End CCPIT Patent and Trademark Law Office 10/F, Ocean Plaza 158 Fuxingmennei Street Beijing 100031, China TEL: +86-10-66412345 FAX: +86-10-66415678/66413211 E-mail: firstname.lastname@example.org Hong Kong Office Unit 9, 34/F., Office Tower Convention Plaza No.1 Harbour Road, Hong Kong TEL: +852-25231833 FAX: +852-25231338 E-mail: HongKong@ccpit-patent.com.cn New York Office One Penn Plaza, Suite 4425 New York, NY 10119 ,U.S.A. TEL: +1-212- 8682066 FAX: +1-212- 8682068 E-mail: NewYork@ccpit-patent.com.cn Shanghai Office 18/ F, Crystal Century Mansion 567 Weihai Road, Jingan District Shanghai 200041, China TEL: +86-21-62888686 FAX: +86-21-62883622 E-mail: email@example.com Munich Office Theresienstr. 152 D-80333 Munich, Germany TEL: +49-89-4801092 FAX: +49-89-4471589 E-mail: firstname.lastname@example.org Guangzhou Office Suite 1112-13, CITIC Plaza 233 Tianhe N. Road Guangzhou 510613, China TEL:+86-20-38770278/38770272/38770262 FAX: +86-20-38770297 E-mail: email@example.com Tokyo Office 3F, Sankaidou Building 1-9-13 Akasaka, Minato-ku Tokyo, 107-0052, Japan TEL : +81-3-5572-6686 FAX: +81-3-5572-6687 E-mail: firstname.lastname@example.org This publication is designed to provide our friends and clients with up-to-date information regarding intellectual property in China. It is not intended to provide legal advice. We welcome your suggestions and comments.