Microsoft Applies Doctrine of Landlord Liability To Software Piracy

Peter Ollier has an interesting article for Managing Copyright about Microsoft's alleged first landlord liability case to tackle rampant software piracy.

Microsoft is suing Beijing Chaoyang Buynow because two of retailers, Beijing Hongguang Century Trading and Beijing Zhuojue Elements Trading were selling computers with pre-installed counterfeit Microsoft Windows and  Office. 

The other case, whereby Microsoft is suing retailer Shanghai Gome at Shanghai Huangpu District People's Court seems to be a traditional case (at least when Shanghai Gome is a subsidiary of Gome Electrical Appliances Holding Limited)

Read Mr Ollier's article here.

Landlord liability in tort law 

Article 2 Tort Law 2010: Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law. “Civil rights and interests” used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, right to self image, right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a trademark, right to discovery, equities, right of succession, and other personal and property rights and interests.

Article 9 Tort Law 2010: One who abets or assists another person in committing a tort shall be liable jointly and severally with the tortfeasor. One who abets or assists a person who does not have civil conduct capacity or only has limited civil conduct capacity in committing a tort shall assume the tort liability; the guardian of such a person without civil conduct capacity or with limited civil conduct capacity shall assume the relevant liability if failing to fulfill his guardian duties. 

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Free webinar, ‘Patent filing strategies in China’

Managing IP, in association with Liu Shen, invites you to a free webinar, ‘Patent filing strategies in China’. It will take place on March 10th at 9.00 am EST / 2.00 pm GMT / 10.00 pm CST.

China is becoming an increasingly important jurisdiction for patent owners around the world. To ensure that they can protect their innovation and enforce their rights, these businesses need to familiarise themselves with how China’s patent system works in practice.

Panellists in this web seminar will discuss topics such as how to comply with China’s secrecy examination for inventions made in China, creating an inventor remuneration policy that will avoid litigation and ways to file the strongest patents possible in this vital emerging market.

Speakers:

• Peter Ollier, Asia editor, Managing IP (moderator)
• Robert Hart, Harman International, Inc.
• Jay Sha, partner, Liu Shen & Associates
• Allen Tao, partner, Liu Shen & Associates

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IP Dragon Speaks on 7th Annual Asia-Pacific IP Forum 2010

September 1, 2010, Stan Abrams of China Hearsay fame, and I will speak on Social Media (such as Facebook, LinkedIn, MySpace, but also blogs) and intellectual property (especially trademark and copyright) issues, during the 7th Annual Asia-Pacific IP Forum 2010.

There is a lot to say about this subject. If you deem a related subject important or have a great example about this subject matter, please do not hesitate to tell me, so that I will use it in my presentation (ipdragon at gmail dot com).

Last year's event Asia-Pacific Forum was great and this year's event seems very promising. Organised by Managing Intellectual Property and chaired by IP Dragon's friends Peter Ollier, Asia editor of Managing Intellectual Property and Dan Cole, Group Publisher (Asia), Legal Media Group.

Hope to see you there. See the agenda of the two day seminar here.

Picture/Text Danny Friedmann

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China's Protectionism Promotes Chinese Patents

IP Dragon's friend Peter Ollier of Managing Intellectual Property reports about the 'Instructions for National Indigenous Innovation Product Application Procedures', promulgated by the Ministry of Science and Technology and the National Center for Science and Technology in September 2009. See Mr Ollier's MIP article here.

In the Third Amendment to China's Patent Law of 2008, China got rid of the requirement that if you want a patent outside China of an invention that was done in China, you first needed to file the patent in China. However, what was the replacement? Article 20 Patent Law 2008 demands a "mandatory advance confidentiality examination" as the IPR2 writers of the excellent booklet 'Third Revision of China's Patent Law' call it, before a patent can be filed abroad; to prevent so called national security issues, has its own disadvantages, about which I will elaborate upon later.
Level Playing Field
China devised the following accreditation principles:

"1. Products should be of great significance. The accredited products must contribute much to or can produce vital influence on the economic and social development;
2. Products should be proprietary. The accredited products must have Chinese intellectual property and proprietary brands, and the ownership and the right of use are clearly defined, without producing disputes;
3. Products should be symbolic. The accredited products must be symbolic products mirroring China’s indigenous innovation capabilities and levels."

So: Economically significant products (vague terms), that are protected by Chinese intellectual property rights. However, the last sentence that the products should mirror China's indigineous innovation capabilities and levels, shows that China will make use of Chinese alternatives if they are available. Read the 'Instructions' translated by US Information Technology Office (a US Government institute that is for example is involved in 'Ruled for Formulating Standards Involving Patents), here.

Photo/Text: Danny Friedmann

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Guidelines of the Supreme People's Court on Implementing the National IP Strategy

Last year China's State Council promulgated the National IP Strategy ("National IP Strategy 2008: Feasible Commitments or Road to Nowhere Paved with Good Intentions" read here), a roadmap that must lead China to become one of the most innovative countries by 2020. The goals formulated in the National IP Strategy were laudable indeed. Question was, how to achieve these goals? Now the Supreme People's Court has formulated some guidelines: 'Comments of the Supreme People's Court on Implementing the National Intellectual [Property] Rights Protection Strategy'. Read the Xinhua article via People's Daily Online here.

Peter Ollier and Janice Qu give a good overview of the guidelines in an article for Managing Intellectual Property; read it here.

I don't have the document, yet. Make my day and send it to ipdragon at gmail dot com. Thanks.

I will come back to it, after I got a chance to read it.

UPDATE: Jing "Brad" Luo of China Business Law sent me the link to the guidelines in Chinese, see here. Thanks Bradford!

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New Draft Third Patent Law Amendment: Slight Improvements

In the beginning of this year there was not much reason for optimism regarding the third patent law amendment, read 'Curb your enthousiasm. The earlier draft included the requirement that Chinese legal and natural persons must first apply for patents before making foreign applications. That's why I wrote in July 'Discover Your Invention in China or Lose Protection'.

Fortunately this requirement has been removed according to Tuo Yannan who wrote an article about it for the China Daily, read more here. However, according to Peter Ollier, the draft article 21 states that for inventions completed in China, businesses need to obtain permission from SIPO before filing abroad, in case they don't file first in China. Read Mr Ollier's article for Managing IP here.

The legislative process for the patent law amendment started in 2006. So far I know that first input was asked, then the State Council put its stamp on the patent law reform blueprint, followed by submittance to the National People's Congress (NPC) Standing Committee for first reading. The deadline for comments is October 10, 2008. A draft law requires three readings before it can be adopted. This is expected to happen in the beginning of 2009, according to Mr Ollier. This latest draft (in Chinese) was submitted tot the National People's Congress.

So what big changes did make it in the new draft?

1. absolute novelty: inventions will need to be novel, not just in China. Tuo Yannan writes that it is not clear whether this absolute novelty requirement would be made retroactive (I would say, not a good idea);
2. disclosure rules for inventions relying on genetic resources;

3. a compulsory licensing scheme where a patent has not been sufficiently exploited within three years of grant, or has been abused by the grantee;
4. changes to the statutory damages.

Read Tuo Yannan's article for the China Daily here.

The Chinese characters 专(zhuan1) 利 (li4) mean together "patent".

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Peter Ollier interviews Netac's Vincent Zhong

Netac Technology was the first Chinese company that sued an American company, PNY Technologies of Texas, for patent infringement (USB flash memory). The two companies settled their patent dispute out of court in March, read more here.
Mr Peter Ollier interviewed Mr Vincent Zhong, vice-president of Netac Technologies about the dispute.

In the interview Mr Zhong tells that Netac Technology is litigating against a Taiwanese company that they accuse of breaching their Taiwanese patent.

Possible explanations for why Netac Technology is the IP avant garde of China is that this company is focusing more on R&D than on production and that two of its have worked for IP savvy Philips in Singapore.

Read Mr Ollier's article''Meet China's litigation pioneer' for Managing Intellectual Property here.

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Trademark and Trade Dress Infringement Case: Wangzhihe versus German Supermarket OKAI

Mr Peter Ollier of Managing Intellectual Properties investigates the challenges Chinese brands have in their strategy to conquer foreign markets, read more here. He mentioned the trademark infringement case of Wangzhihe (Beijing flavoured Beancurd), which was founded in 1678! according to Xinhua, versus OKAI, a German supermarket chain. A Munich Court started hearing the case August 8, Mr Ollier writes.

Mr Ollier uses this example to look more generally to potential problems facing Chinese companies who have set their eyes on expansion abroad:

• prior trademark registrations;


• high cost of international filings;


• the need to translate their name or rebrand altogether;


• lack of awareness within the company about the importance of brand protection;


• in some cases: becoming sufficiently innovative to make the move from OEM (original equipment manufacturer) to creating a distinctive, valuable brand.

Read the Xinhua article: 'Beancurd Brand Filed Lawsuit Against German Company' here and the IPR.gov.cn article 'Chinese brands Wangzhihe, Baijia bring German company to court' here.

UPDATE: Mr Peter Ollier of Managing Intellectual Property was so kind as to elaborate about the identity of the defendant at the request of IP Dragon: "Okai Import Export GmbH | Okai China Supermarkt | China & Asia Lebensmittel Industrieproduktion", based in Berlin, Germany. Thank you Mr Ollier.

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BitTorrent Uploader Loses Final Appeal

Remember the BitTorrent uploader in Hong Kong, who knick named himself Big Crook, and was sentenced three months in prison? Read more here. He lost his appeal in December 2006 and now his final appeal.

Peter Ollier of Managing Intellectual Property reports about the Hong Kong Court of final appeal that confirmed the first criminal conviction on May 18th.

Read Ollier's article (free registration), which includes a link to the 24-page judgement written by Justice PJ Ribeiro, and explanations of what constitutes a copy capable of distribution and what conduct amounts to distribution, here.

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Counterfeit Cars, Backlogs and Economic Nationalism

The Economist has an article about Counterfeit cars in China.

It writes:
"So far, legal action by foreign firms has proved nearly useless. The many writs, threats, injunctions and court cases have become embroiled in slow-grinding legal machinations, been thrown out on technical grounds or failed because foreign firms had not properly registered their designs."

Some of China's administrative enforcement authorities, such as the Trademark Office and Trademark Review and Adjudication Board, are indeed slow-grinding, because they have a big backlog, reports Peter Ollier for Managing Intellectual Property:

"18 and 30 months to register their marks, five years to get a ruling in an opposition hearing, and up to seven years for a decision from the Trademark Review and Adjudication Board (TRAB) in a cancellation action."

Although China's provisions stipulate provisional measures including injunctions, the delays in deciding trademark oppositions by the Trademark Review and Adjudication Board can have a knock-on effect.

Ollier writes:
"In late 2005 the Supreme Court stated that when there is a dispute over registered trade marks, courts should not handle such cases but should wait for the dispute to be dealt by the Trade Mark Office first."

Of course car producers should not forget to register their design rights in China. However, even if they forget their designs should be protected by copyright, which does not need to be registered.

Then the Economist also refers to economic nationalism:
"Foreign carmakers are reluctant to make too much of a fuss, lest they be excluded from a fast-growing market or generate unwelcome negative publicity."

Read Ollier's article here. Read the Economist article here.

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