2013-02-26 23:27:43
China Supreme Court IP Case Report ( 2011) released 34 guiding precedents, among which 22 are related to judiciary review of decisions made by the Trademark Reexamination and Appeal Board and Patent Review Board. Legally speaking the precedents will guide people's courts at all levels to adjudicate intellectual property rights cases.
Patent Cases Trial
The China Supreme People’s Court (CSC) denies State Intellectual Property Office (SIPO)’s practice and has reversed claim amendments citing the Seiko Epson v PRB case, holding that patent applicants are entitled to either narrow or broaden the scope for claims. CSC also gives patentees bigger flexibility with claim amendments during invalidation proceedings, if they do not broaden the scope of granted claims.
Trademark Cases Trial
The Report sets a precedent allowing judges to review evidence previously unexamined by the Trademark Office (TMO) or Trademark Reexamination and Appeal Board (TRAB) . A case whether the mark Best Buy can be registered reflects the CSC is of opinion that the presence of a descriptive element does not necessarily negate the distinctiveness of the mark. The mark may still be registered, if the relevant public can recognise the source of the goods.
CSC holds that the TMO’s Classification Chart could not be the sole basis for determining the similarity of good at least two precedents. Rather the likelihood of confusion is the key principal judges should apply when determining similarity.
Trade Secret Cases Trial
Under Chinese law, a claimant has to prove it took measures to protect its confidential information to qualify for trade secret protection. CSC states these measures must prove the claimant’s intention to protect confidential information. A non-compete agreement containing no obligation with a confidentiality clause is not qualified.
CSC has established a presumption for trade secret infringement. If the defendant has access to confidential information and later develops a product using it, and if the defendant fails to prove the product development results from independent research, the courts may find there is trade secret infringement based on common experience.
Please also find 2011 China Annual Report on Intellectual Property Cases (Abstract)