Dr.Jiang : We know for sure that China do and will insist on the principles of “reform and opening......

…………Dr.Jiang said:

Well, let’s go to the second part. I would share my some comments and prospects on the Development of IP in China

The global financial crisis has a big influence on the economic development of China and some factors supporting the rapid economic development in China have changed.  Around the country export trade has decreased, stock markets have fallen, capital chains of some enterprises have ruptured, more and more factories and companies are running under their production capacity, and layoff has become the highest-click-rate word.  All of these bring a great impact and challenges to the economic development pattern in China.  And these must have some effect on China’s IP litigation system.

The infringing acts of intellectual property are various now.  Besides the infringements on and crimes of Intellectual Property, the IP conflicts between companies are another serious problem.  Different right owners have different concerns on their own rights; the multinational enterprises’ concern and suspicion on the protection of proprietary intellectual property rights in China still remain too.  The financial crisis made the above problems worse.  Thus, people cut budget of IP protection.  For one thing, the conflicts are increased.  For another, the budget of IP protection is decreased.  All of these problems bring big pressure to IP litigation, not only on the quantity degree, but also on the quality degree.

We know for sure that China do and will insist on the principles of “reform and opening to the outside world” and “constructing innovative country”.  On this basis, the peaceful development, which indicates the pursuit of internal harmony and external equality, is still the general trend for future development.  For one hand, we should enhance the economic development with all our strength; for another hand, we have to keep balances and tame the economy.  Therefore, we are establishing a powerful, impartial, transparent, and convenient IP judicial protection system, and we should enhance IP international cooperation.

For one hand, we are trying our best to perfect China IP legislation system; for another hand, we should not ignore the important role of the directions from Supreme Court’s precedents, since Intellectual Property Law is a relatively active legal area.  The IP laws and regulations are much easier to be lagged and difficult to be stipulated completed.

Let’s share a case ruled by China Supreme Court:

PATENT PROTECTION:

SCOPE OF PROTECTION AND INDIVIDUAL CLAIMS

Petitioner, Yuelu Superstar Construction Materials Ltd. Corporation, appealed a decision from Xinjiang High Court, which held non-infringement of patents in favor of defendants Xinjiang Arksu National Taxation Bureau and Xinjiang No. 1 Construction and Engineering Ltd. Corporation.  The Supreme Court of the PRC vacates and remands.  Xinjiang Yuelu Superstar Construction Materials Ltd. Corporation v. Xinjiang Arksu National Taxation Bureau (PRC Supreme Court No. 2006-Civil 3-16-1, August 10, 2007, by Judges Yongchang Wang, Zhongling Ge and Junli Xia)

The Supreme Court holds that after a patent is held partially invalid, the scope of protection of the patent depends on the remaining claims incorporating the limitations of the claims from which they are dependent, i.e., limitations of each valid claim together with the limitations of their parent claims define the scope of protection.  Each valid claim is itself a complete and different invention, warranting individual protection.  The lower court did not analyze and separate the claimed inventions, but defined the scope of the patent by including limitations of all survival claims and their parent claims together, leading to the conclusion that the alleged infringing products fell outside of the scope of the patent.  The Supreme Court holds that such analysis and conclusion were erroneous.  The Court thus remands the case back to the Xinjiang High Court for retrial and suspends any execution of the Xinjiang High Court’s earlier decision during retrial.

The Supreme People's Court of China is thinking and studying about establishing an intellectual property appellate court in the capital Beijing.  The Supreme People's Court is actively conducting investigation on the unified standards in judicial practice, such as patent infringement and grant of trademark rights.  The reforms of administrative authorization, complicated judicial proceeding, and recurrent litigation are also to be launched.

We are happy to see that now in China, qualified legal service professionals are growing in number.  These legal service professionals have experiences in providing international legal services; they are fluent in foreign languages; they are well-qualified lawyers and have good professional ethics.  Developments of such teams will improve the quality of legal services to be provided to domestic or international clients.

The improvements and developments of intellectual property protection system will provide a sound legal environment for the stable and rapid economic development of China, and such improvements and developments will also make positive influences on the economic developments and intellectual property protections for other countries in the world.

Thank you for your attention.