Federal Circuit Affirms Findings of Non-Infringement and Invalidity in Interdigital 337 Appeal

In a non-precedential opinion authored by Chief Judge Prost and released today, the Federal Circuit  affirmed findings of non-infringement or invalidity in the five patents asserted by InterDigital in Certain Wireless Devices with 3G Capabilities and Components  thereof,Inv. No. 337-TA-800 (Dec. 19, 2013), in which Huawei and ZTE, amongst others, were respondents.  Huawei initiated  law suits in China in response to InterDigital’s original 337 filing, including claims for prospective damages for abuse of dominance by reason of InterDigital’s seeking an exclusion order at the ITC for claimed standards essential patents.

 

New Patent JI Released by SPC

On January 29, 2015 (last week) the Supreme People’s Court released the newly revised Judicial Interpretation “The Supreme People’s Court’s Decision on Revising Application of the Law in the Hearing of Patent Dispute Cases” (最高人民法院关于审理专利纠纷案件适用法律问题的若干规定). I previously posted the American Bar Association’s comments on this JI here. The JI came into effect February 1.

Revised Patent Administrative Enforcement Rules – Is SIPO Building an Administrative System so the Patent Law Amendments Will Come?

On January 27, 2015 SIPO released a revised draft of its Patent Administrative Enforcement rules for public comment.  The released draft includes a line by line comparison with the last version (Feb. 1, 2011) as well as an explanation of the changes. The due date for comments is March 15, 2015. The purpose of these amendments is to address such matters as reducing the time frame for patent administrative litigation, improving procedures, and improving enforcement in the on-line environment.

Separately SIPO Commissioner Shen revealed at a SIPO Party Meeting on January 23, that in addition to rapidly increasing patent filings (2.361 million in total in 2014), , the total number of patent administration enforcement cases was 24,479, increasing 50.9% from the prior year.  This is a nearly 16 fold increase since 2009.  Past efforts like these have typically brought surges in “patent passing off” cases, which is most like false marking.   SIPO’s administrative enforcement in recent years has also shown irregular month to month cycles that are likely tied to enforcement campaigns (see my chart below).Patentadminenf

I estimate that this high level of enforcement activity is likely due to a combination of four factors, including an NPC Standing Committee to supervise administrative patent enforcement in eight provinces and regions that was launched in 2014. a campaign from last year to address counterfeit and substandard products (打击侵犯知识产权和制售假冒伪劣商品), a renewed commitment to amend the patent law, which Commissioner Shen noted in his talk at the meeting to local IP Offices on January 19, and SIPO’s own desire to ensure that its administrative enforcement system is not sidelined by recent efforts to improve judicial adjudication of high technology IP cases, including the establishment o f the specialized IP courts.   Indeed, the explanation advises that this draft reflects the commitments to improving rule of law in China.

The different roles of China’s administrative and judicial systems in patent enforcement has been previously discussed by me in this blog,  I quoted David Kappos at that time as recommending that “China should consider concrete ways of promoting and improving the civil judicial enforcement system by providing more resources, promoting the independence of the judiciary, providing for more training of judges, particularly on technical patent matters, and in general, improvements in the civil legal environment”  Many of these efforts are now underway in the judicial system.   Maybe the administrative system is trying to catch up?

Photo below, from Beijing airport – a foreign company advertising its patented product in 2015.

patentedmakeup.jpg

Updated January 17, 2016.

Ministry of Commerce IP Program in DC December 5

Chen Fuli, IP Attaché at the Chinese Embassy in Washington, DC the morning of December 5.   The program is free of charge, but seating may be limited.   You should RSVP at: lishuai@mofcom.gov.cn.

The topics are all ones that I have actively followed in this blog.  Here is the tentative agenda:

International High Level IPR Cooperation Forum

Dec 5,  Georgetown Holiday Inn

2101 Wisconsin Ave, NW, 20007, Washington DC

 9:00-9:20  Opening remarks, by Both China and U.S. Representatives

 9:20-9:40   New developments in IP enforcement in China, by Director Jing Zhang from the Office of Fighting Against IPR Infringing and Making or Selling Counterfeit and Shoddy Products under the State Council

9:40-10:00  New amended Chinese Trademark Law, by Deputy Director General Qing Xia from CTMO

 10:00-10:15 Q & A

 10:15-10:30 Coffee Break

 10:30-10:50  Amending of Chinese Copyright Law by Deputy Director Ping Hu from NCAC

10:50-11:10  Amending of Chinese Patent Law and Regulation on Service Invention by director Yanhong Wang from SIPO

11:10-11:30  New practice of IP trials after the amendment of Chinese Civil Procedure Law by Judge Yuanming Qin from SPC

11:30-11:50 Q & A

11:50-12:00 Closing Remarks

—————-

12:00-13:30                    Lunch (hosted by China for all the participants)

In addition to the speakers noted above, there will also be Chinese official participants from public security, Customs, procuratorate, AQSIQ and other agencies, which should help make for lively discussion and interaction.  I hope to see you there!

Challenges for IP Protection in the Innovative Economy: The Case of Pharma in China

Attached are English and Chinese versions of a speech by USPTO Acting Director Teresa Rea that was first delivered at China Pharmaceutical University earlier this month.  The speech underscores the challenges for innovative pharmaceutical companies in China’s current IP environment.