CNIPA Publishes Patent Licensing Data for Past Five Years
Date: 26 July 2022
Recently, the China National Intellectual Property Administration Office (CNIPA) released data related to the implementation of patent licenses registered in 2021 and the five preceding years, in order to promote the exploitation of intellectual property. The information is also useful for evaluation and pricing in the context of intellectual property licensing and other transactions, as well as the determination of infringement compensation.
There were 13,495 patent licenses registered between 1 January 2017 and 31 December 2021, involving 40,212 patents. Most licenses were fixed fee; there were 8528 of these, representing 63.2% of the total and valued at CNY 29.24 billion (approx. US$ 4 billion). There were 1250 royalty payment licenses and 3,717 gratuitous contracts, accounting for 9.3% and 27.5% respectively. The number of manufacturing contracts was the highest, of which 5,585 were fixed fee licenses with an average license period of 4.6 years and an average annual contract amount of 717,000 yuan (approx. US$ 100,000).
From 1 January 2021 to 31 December 2021, 4,271 patent licenses, involving 16,125 patents, were registered. Of these, 2,748 were fixed fee licenses, accounting for 64.3% of the total. There were 307 royalty licenses and 1,216 royalty free licenses, accounting for 7.2% and 28.5% respectively. The number of licenses in the manufacturing industry remains the largest, among which a total of 1,623 provided for a fixed fee. The average license period was shorter than in the previous five years, only 3.8 years, with an average annual contract amount of CNY 779,000.
Source: China National Intellectual Property Administration 2022-07-26
Cyberspace Administration Authority Imposes Administrative Fine on Didi Corporation. for Cybersecurity Violation
Date: 21 July 2022
Didi is a Chinese technology platform, offering ride hailing, taxi hailing, chauffeur, hitch and other forms of shared transport services as well as food delivery, intra-city freight and financial services across markets including Asia-Pacific, Latin America and Africa.
After investigation, Cyberspace Administration of China found that Didi had violated the Cybersecurity Law, Data Security Law, and Personal Information Protection Law. It imposed a fine of CNY 8.026 billion (US$ 1 billion) on Didi and a fine of CNY 1 million (US$ 140,000) on each of Cheng Wei, Didi’s Chairman and CEO, and Liu Qing, its President.
The sixteen illegal acts that were found can be divided into eight categories: (1) the illegal collection of 11.9639 million screenshots in users' mobile phone albums; (2) the excessive collection of user clipping board information and application list information - 8.323 billion pieces; (3) the excessive collection of information: passenger face recognition information – 107 million pieces; age information – 53,509,200 pieces; professional information - 16.3356 million pieces; family relationship information - 1.3829 million pieces; and “home” and “company” taxi address information - 1.3829 million pieces; (4) the excessive collection of information on the precise location (latitude and longitude) of passengers, either through the Didi App or when the passengers’ mobile phones were connected to the Jushi Recorder (the vehicle data recorder Didi uses) - 167 million pieces; (5) the excessive collection of driver education information - 142,900 pieces; and the storage of 57,802,600 driver ID numbers in plain text; (6) the unauthorized analysis of 53.976 billion pieces of passengers’ travel intention information, 1.538 billion pieces of passengers’ resident city information, and 304 million pieces of remote business / travel information without clearly informing passengers; (7) the frequent requests for irrelevant telephone permissions from customers using the hitch service. e.g. access to the customer’s contact list; (8) the lack of accurate and clear explanation of the purpose of processing 19 categories of personal information, including the user’s equipment information.
In addition, in the network security review, the Cyberspace Administration of China found that data processing activities conducted by Didi seriously affected national security. Also, Didi was found to have refused to meet the clear requirements of regulatory authorities, positively violated regulations, maliciously evaded supervision, and engaged in other illegal activities that posed serious risks to national security.
Source: Cyberspace Administration of China 2022-07-21
China’s Cyberspace Administration Issues Security Assessment Measures for Outbound Data Transfers
Issued Number: Order of the Cyberspace Administration of China (No. 11)
The Security Assessment Measures for Outbound Data Transfers (the Measures) makes provision for a government security assessment of certain outbound data transfers; in particular, the transfer of data that has an important impact on national security and data security. The Measure’s 20 articles include provisions relating to the object of the security assessments, the evaluation process, and the management mechanism.
According to the Measures, a data processor shall apply for a security assessment in relation to its outbound data transfer where (1) the data processor is providing critical data abroad; (2) a key information infrastructure operator or a data processor is processing the personal information of more than one million individuals provides personal information abroad; (3) the data processor has provided personal information of 100,000 individuals or sensitive personal information of 10,000 individuals in total abroad since 1 January of the previous year; and (4) other circumstances.
The security assessment in relation to an outbound data transfer shall focus on assessment of the potential risk to national security, the public interest, and the legitimate right and interest of individuals or organizations. The Measures require the data security protection responsibilities and obligations to be clearly agreed upon in the legal documents concluded between the data processors and the overseas recipients. The assessment focuses primarily on: (1) the legality, legitimacy and necessity of the purpose, scope, and method of the outbound data transfer; (2) the impact of the data security protection policies and regulations and the cybersecurity environment in the country or region where the overseas recipient is located, and whether the data protection level of the overseas recipient meets the requirements of the laws and administrative regulations of the People's Republic of China and mandatory national standards; (3) the size, scope, types and sensitivity of data to be provided abroad, and the risks that the data may be tampered with, destroyed, divulged, lost, transferred, illegally obtained or illegally used during and after the data is provided abroad; (4) whether data security and personal information rights and interests can be fully and effectively guaranteed; (5) whether the legal documents to be concluded by the data processor and the overseas recipient have dealt fully with the responsibilities and obligations of data security protection; (6) compliance with Chinese laws, administrative regulations and departmental rules; and (7) other factors.
After passing the security assessment, the data processor can carry out outbound data transfer of the declared items strictly in accordance with terms of the assessment. The results of a security assessment are valid for two years, commencing from the date of issuance of the result. If it is necessary to continue outbound data transfers after the expiration of the period of validity, the data processor shall apply for a new assessment 60 working days before the expiration of the period of validity.
It should be noted that for the outbound transfer of personal information, the safety assessment applies if the transfer falls within the scope of the Measures. If it doesn’t, the pre-requirements of outbound personal information transfers can be met by obtaining a personal information protection certification or signing standard contracts formulated by the Cyberspace Administration of China.
Source: Cyberspace Administration of China 2022-07-07
Hangzhou Intermediate People’s Court Awards Punitive Damages of 5,000,000 Yuan (approx. US$ 700,000) in Huawei's Trademark Infringement Case
Date: 07 July 2022
The Plaintiff, Huawei Corporation, has exclusive trademark rights in the word mark ‘Huawei’ and the logo ‘ ’. The ‘Huawei’ word mark is registered in relation to camera material frame and tripods; the ‘ ’ mark in relation to smart phones, video cameras and headphones. The main business of the Defendant, Shangpai, is online digital products sales. The Plaintiff found that Shangpai was using ‘Huawei’ in relation to goods being sold on its online store and displaying a fake Huawei network channel sales authorization on its sales page, with the ‘ ’ mark appearing on a product display map and a false sales authorization letter. Huawei considered that Shangpai’s conduct constituted trademark infringement; it filed an infringement action in the Hangzhou Intermediate People's Court.
After the trial, the Court held that the Defendant Shangpai’s setting of ‘Huawei’ as a search keyword and use of both the word ‘Huawei’ and the logo ‘ ’ in its product display map served as source identification for consumers, and, therefore, constituted trademark use under Trademark Law. Further, the Defendant used the logo, together with the word HUAWEI on mobile phone stabilizer tripod heads, which fell within the classification of goods in relation to which both Huawei marks were registered. The word mark ‘Huawei’ used by the Defendant was exactly the same as the Plaintiff's registered trademark. The Plaintiff and Defendant logos ‘ ’ and ‘ ’ shared the same main part, the eight-petal flower pattern; hence, the Defendant was using a trademark similar to Huawei’s registered mark in relation to similar goods. Huawei’s registered mark had, therefore, been infringed.
After comprehensive consideration, the Court determined that the Defendant's infringement was malicious and and serious. Punitive damages were, therefore, applicable according to the provisions of Article 63 of the Trademark Law. The Court ordered the Defendant to compensate Huawei Company for more than CNY 6.2 million (approx. US$880,000). Since the amount exceeded Huawei's claim, the Court finally fully supported Huawei's compensation claim of CNY 5 million (approx. US$ 700,000).
Source: China News Website 2022-07-07
原告华为公司享有“华为”和“ ”的商标专用权。被告尚派公司主营业务为线上数码产品销售。原告发现被告在其网店所售卖的商品中使用“华为”，在其网店产品销售页面展示虚假的华为网络渠道销售授权书，并在产品展示图、虚假销售授权书中使用“ ”标志，足以使消费者产生误认，故将被告起诉至杭州市中级人民法院。
法院经审理后认为，被告尚派公司将“华为”设置为搜索关键字、在产品展示图中使用“华为”“ ”的突出使用的行为可对消费者产生识别商品来源的功效，可以认定为商标法意义上的商标使用。同时，本案中被诉标志用于手机稳定器云台，在商品分类上与涉案商标“华为”核准注册的照相机材架、三脚架等属于同类商品，与“ ”核准注册的智能手机、摄像机及耳机等属于类似商品。此外，被告使用的“华为”标志与原告的“华为”注册商标完全一致，为相同商标；被告使用的“”与“ ”主要部分八瓣花图案和HUAWEI文字相同，构成近似商标。因此，被告构成对原告注册商标专用权的侵犯。
CNIPA Press Conference on the Commercialization of Intellectual Property Rights
CNIPA recently held a press conference to report on progress on the commercialization of intellectual property rights, focusing on three main areas.
There was a marked increase in patent transfers and licenses in 2021, the number nationwide reaching 420,000, with a year-on-year increase of 15%. The total value of intellectual property import and export royalties nationwide reached 378.3 billion yuan (US$ 53 billion), representing a growth rate for intellectual property export of 27.1%, exceeding the growth rate for import by 10.5 percentage points.
Intellectual property financing continued to develop. In 2021, patent and trademark pledge financing nationwide reaching 309.8 billion yuan (approx. US$43 billion), maintaining a growth rate of more than 40% for two consecutive years. Among these transactions, 7,345 related to projects with a value of less than 10 million yuan (approx. US$1.5 million), representing a year-on-year increase of 112%, effectively alleviating the urgent needs of a group of small and medium-sized enterprises.
The financial benefits of intellectual property exploitation have accelerated. The added value of national patent-intensive industries in 2020 reached 12.13 trillion yuan (approx. US$ 1.5 trillion), representing 24.6% of GDP growth. In relation to brands and trademarks, the 2,100 trademark and brand guidance stations that have been established across the country are helping brand owners with the commercial exploitation of their trademarks and brands. In terms of promoting the development of characteristic economy, the total output value of related industries reached 562.5 billion yuan, and 1.17million new jobs were created. The role of geographical indications in promoting the development of characteristic economy and rural revitalization has been increasingly improved.
Source: China National Intellectual Property Administration 08/24/2022
CNIPA Concluded the First Batch of Administrative Decisions on Major Patent Infringement Disputes
The amended patent law gives power to the China National Intellectual Property Administration (CNIPA) to hear major patent disputes of national significance upon the request of patentees or stakeholders. CNIPA concluded its maiden trial, handing down decisions in two cases of administrative adjudication involving major patent disputes. German-based Boehringer-Ingelheim was the applicant in both cases, and the respondents were respectively Sunshine Lake Pharmaceutical Co., Ltd. and Yichang Changjiang Pharmaceutical Co., Ltd. In both cases, the respondents had been requested to stop manufacturing, selling and promising to sell allegedly infringing products nationwide. After considering whether the cases were admissible as major patent disputes, whether the pharmaceuticals in question listed on the internet by the respondents in multiple provinces (autonomous regions and/or municipalities) constituted an offer for sale or fell within the exceptions to infringement prescribed in the patent law, and some other central issues, CNIPA finally supported the request by the applicant to stop infringement in both cases.
Source: China National Intellectual Property Administration 2022-08-05
Beijing Century Superstar Information Technology Development Co, Ltd Awarded Damages of 196,000 Yuan (approx. US$26,500) in Copyright Ownership and Infringement Action against CNKI
Beijing Century Superstar Information Technology Development Co., Ltd (Century Superstar Company), which operates the Superstar Digital Library, sued China Academic Journals (CD Edition) Electronic Publishing House Co., Ltd. (CNKI) for copyright infringement. The Plaintiff, Century Superstar Company, argued that it enjoyed the exclusive information network transmission right in a particular article. In providing online reading and downloading services in relation to the article without permission, CNKI had infringed its information network transmission right.
After review, the Court held that Century Superstar Company, having received appropriate authorization from the copyright owner, enjoyed the exclusive information network transmission right in the article. The Defendant, CNKI, had provided downloading services, not reprinting or excerpting, in relation to the article without permission and had, therefore, infringed copyright. The Plaintiff filed a total of 13 lawsuits and was awarded 196,000 yuan in total.
This is not the first time CNKI has had problems with copyright. In 2021, it was sued by the retired professor, Zhao Dexin, for the unauthorized distribution of more than 100 papers, and ordered to pay compensation of more than 700,000 yuan.
Source: Renmin News
Beijing Intellectual Property Court Releases Handbook for Evidence Presentation in Civil Cases Involving Computer Software Copyright
Release Date: 2022-08-25
Effective Date: 2022-08-25
The Beijing Intellectual Property Court recently held a press conference concerning the release of its Handbook for Evidence presentation of Parties in Civil Cases Involving Computer Software Copyright in both Chinese and English. The Handbook is written in the form of questions and answers. During the press conference, the Court summarized its experience in computer software copyright cases during the previous eight years, and clarified how evidence should be presented in relation to four types of issue, including ownership of computer software copyright, infringement of computer software copyright, computer software contracts, and civil court procedure in computer software copyright actions. The clear guidance provided in the Handbook should significantly simplify the trial process, help both domestic and foreign parties present their evidence effectively, promote accurate adjudication by the court, and generally benefit development of the software industry
Source: Beijing Legal 2022-08-25