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China Intellectual Proprty Courts

China intellectual property court

Nanjing and Suzhou Intellectual Property Court Recently Established. Approved by the Supreme Court approved the establishment of Nanjing, Suzhou Intellectual Property Tribunal established. Nanjing, Suzhou Intellectual Property Tribunal was formally established in Nanjing, Suzhou, which is not only a major reform of our province's judicial system of intellectual property protection, but also an important measure of our province's judicial reform. , Nanjing Municipal Party Committee Secretary Wu Zhenglong, the Standing Committee of the Provincial Party Committee, Zhou Naixiang, secretary of the Suzhou Municipal Party Committee, the Provincial People's Court Party Secretary and Dean Xu Qianfei for the opening of the two courts.

The province is the second largest economy in China and the largest manufacturing province, and its regional innovation capacity ranks first in the country for 7 consecutive years. The contribution rate of scientific and technological progress to economic growth is 60%. Based on Jiangsu's strong economic and technological foundation, The number of provincial intellectual property cases has been among the forefront of the country. In 2016, the province's courts to accept more than 13,000 cases of intellectual property rights of civil cases, of which 1918 cases of patent and technology contracts.

 

Defenses to Trademark Infringement Claims in China

China trademark attorney

Welcome to China lawyer Blog, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration in China. Our law firm representing trademark infringement plaintiffs and defendants in China.  Recently I received quite a few question related to China trademark and IP laws. Accordingly I published a few articles on this blog on trademark and IP related matters. One of questions I received is how to respond to trademark infringement claims. In other words, how to defend yourself against trademark infringement claims. Today, I will be answering the question:  What Are My Defenses to a Trademark Infringement Claim under Chinese law?

Defenses to trademark infringement allegations include: the trademark is invalid, the trademark has been abandoned, or the mark is not distinctive.

You will know if you are being subjected to a trademark infringement claim if one of several things occurs.  More likely than not, you will receive what’s known as a cease and desist letter, sometimes also referred to as a threat letter.  That letter will set forth the sender’s rights in a trademark, identify your unauthorized use, and also set forth why they believe that you are infringing their trademark.  It is at this junction that it is important for you to retain legal counsel, preferably a trademark infringement attorney, who can advise you as to the defenses you have available.  

 

Patent Opinions

China patent opinion

Patent lawyers at this china law firm is regularly asked to render legal opinions on issues related to patents. A patent opinion is a comprehensive analysis of a business entity's position with respect to the patent landscape prepared by counsel utilizing the attorney's experience in intellectual property law. There are four types of opinions commonly prepared by patent attorneys: freedom to operate opinions, infringement opinions, patentability opinions, and validity opinions. Obtaining an opinion as to the invalidity of a patent may provide a defense against willful infringement. On the other hand, failure to obtain a non-infringement opinion may serve as evidence of intent to induce infringement.

There are several different types of patent opinions:

Patentability Opinions

A patentability opinion advises you as to whether or not it may be worth the time and expense of pursuing patent protection. These opinions answer the questions of what possible action the patent office might take on your application and whether or not it is likely that the patent office will grant a patent for the invention claimed in your application.

Such opinions are not a guarantee that a patent will or will not be granted. Rather, they are our assessment of the likelihood of obtaining patent protection, based on our experience in these matters.

 

Defense Against patent infringement claim

Patent infringement defense

A China patent attorney can assist with claims construction that would properly explain the meaning of the claim terms in a way that would affect the scope of the claims. Terminology used in patent claims may have a meaning that is narrower or broader than the common usage of the word. This could help eliminate the possibility of infringement in some cases. Patents can give particular definitions of words either expressly or implicitly. Also, particular technology or art areas may have designated meaning within their fields.

A patent attorney may also be able to help you assert the defense of inequitable conduct, meaning that the claimant failed to disclose relevant prior art to the China patent office during prosecution of the application. Under China patent law, it is the burden of the applicant and his attorneys to disclose relevant prior art that the applicant is aware exists. Inequitable conduct invalidates the entire patent. In order to claim inequitable conduct, the defense must cite the prior art and provide clear and convincing evidence that the claimant acted in a way to intentionally deceive the China patent office. Case law has shown that the more material the prior art, the more that intent may be presumed. With intent being more difficult to prove, the emphasis is generally placed on proving that the omission or misrepresentation was significant.

Defense against an alleged patent or utility model infringement is possible by the following arguments:

  • The scope of the claims does not cover the distributed product or offered service.
  • Right to use the invention based on own prior use in China.
  • The subject matter of the patent or utility model is not novel and/or not based on an inventive step.
  • If none of these arguments applies, a solution circumventing the claims of the patent has to be found (walk around).

When a client receives a cease and desist letter asserting a patent, the way forward can seem daunting. Defending patent litigation can be quite expensive, and the time and energy the defendant spends may be of even more value than the money. A thorough, efficient defense requires our China Patent lawyer who has experience both as a patent owners’ attorney in litigation as well as on the defendant’s side. Understanding the strategies of both sides is important. Our firm has that experience.

 

Patent due diligence in technology company acquisition

China patent due diligence

A technology development and patent portfolio management strategy may include patent due diligence to evaluate the intellectual property of others to gain freedom to operate in a given technology field. Especially when you are cut a transaction in China, it's important to first look at the Target company's patent information. Our China Patent lawyer reminds you to do patent due diligence in merger and acquisition activities.

An important goal of the acquisition due diligence process is to assess the strategic value of the patent portfolio to the Target Company’s business, including the extent of the exclusivity in the marketplace that these assets provide. As experience China lawyer of patent law, we provide full patent law service to international clients.

Ideally the Target Company has already mapped its patent portfolio to its products and services, showing which parts of the patent portfolio protect what lines of business. Unfortunately many companies have not done this basic analysis and because it can be time consuming it might not be practical to do in the short calendar time in which acquisition due diligence takes place. In a future post we will examine various approaches to address this problem.

Acquired Patent Risk: Exposure to Acquired Patent Infringement Risk

Examining the strategic value of a patent portfolio provides insights into the potential “upside” that the portfolio may provide.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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This China Lawyer Blog is aiming at providing better knowledge and understanding of Chinese law for foreigners. Should you have any legal issue in China, do not hesitate to contact China Lawyer Blog for consultation. Preliminary consultation is free. Further legal service, however, will be charged in due rate and in due course.

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.