How Fair is Patent Litigation in China? Evidence from the Beijing Courts

2019 ◽  
Vol 241 ◽  
pp. 247-261
Author(s):  
Chenguo Zhang ◽  
Jin Cao
Keyword(s):  
Intellectual Property ◽  
Field Research ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Patent Litigation ◽  
The Third ◽  
Upper Limit ◽  
Chinese Patent ◽  
The Right ◽  
Trade Partners

AbstractBy conducting field research and analysing judgments delivered in Beijing courts from 2004 to 2011, we find that the popular notion held by China's trade partners of the inadequacy of intellectual property protection is only partly supported by the empirical evidence. The likelihood of winning lawsuits is higher for foreign than domestic plaintiffs and the extremely low damages ruled by Chinese courts are due to particular causes. Courts lack consistent methods to calculate incurred losses in intellectual property right (IPR) infringements and consequently routinely apply the statutory damages whose upper limit is restricted by legislation. Efforts by Chinese legislators to enhance compensation by lifting the upper limit of awardable statutory damages in the Third Amendment of Chinese Patent Law (2008) did not seem to have an effect on our sample. Chinese policymakers should instead focus on the cause of the issue by providing more implementable guidelines for courts to calculate losses. Courts need to develop applicable conventions for calculating damages, based on objective criteria of how much compensation ought to be payable, which is also the basis of calculating reasonable statutory damages. Thus, the new provision of the “right of information” on pirated goods proposed by the ongoing Fourth Amendment provides a significant weapon to combat counterfeiting.

Patent Protection for Biotechnology in China: the Current Legislation and the Proposed Third Amendment

2008 ◽  
Vol 5 (1) ◽  
Author(s):  
Ying Zhan
Keyword(s):  
Intellectual Property ◽  
Patent Protection ◽  
Final Section ◽  
Patent Law ◽  
Property Right ◽  
Intellectual Property Right ◽  
Patent Policy ◽  
The Third ◽  
Related Information

AbstractThis article addresses the Chinese legislation on patent protection for biotechnology. Section I presents a brief overview of China's intellectual property right protection regime for biotechnology; Section II describes the China's current patent legislation on biotechnology. Since April 2005, China has lunched the third amendment to its Patent Law. The related information of the third amendment to Chinese biotechnology patent policy is provided in the final section.

Part I The Nature of Intangible Property, 7 Intellectual Property

2018 ◽  
Author(s):  
Smith Marcus ◽  
Leslie Nico
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Industrial Design ◽  
Property Right ◽  
Moral Rights ◽  
Intellectual Property Right ◽  
Confidential Information ◽  
The Right

This chapter examines intellectual property. The governing principles relating to intellectual property are very different from the principles that underlie other choses, like rights under contracts or debts. Like shares, intellectual property rights are characterized by specific statutory rules relating to their creation, as well as to their transfer. Intellectual property rights can be divided under six heads: patents; copyright; moral rights; industrial design rights; trademarks; and confidential information. In each case, the holder of the right is able—by virtue of ownership—to prevent others from doing what they otherwise could do. Each of these intellectual property rights has four different aspects: the intellectual property right itself; rights of action for infringement; validity challenges; and licensing.

scholarly journals Positive Protection: Protecting Genetic Resources Related to Traditional Knowledge in Indonesia

FIAT JUSTISIA ◽  
2018 ◽  
Vol 11 (2) ◽  
pp. 122
Author(s):  
Rohaini Rohaini ◽  
Nenny Dwi Ariani
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Genetic Resources ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
International Pressure

Genetic Resources is a foundation of human life, as a source of food, industrial raw materials, pharmaceuticals, and medicines. From its utilization may provide a financial benefit to the provider and the user of it. Unfortunately, most of it obtained from developing countries through biopiracy, including Indonesia. Furthermore, in the early 1980s, access and benefit sharing (ABS) to genetic resources became an international issue. It leads to the adoption of the Convention on Biological Diversity (CBD) in 1992. However, since it was approved, the whole ideas of excellence of it could not be implemented, a problem on it still arises. Intellectual property right laws, in certain aspects, are possible for using to protect traditional knowledge from their utilization. However, at the same time, intellectual property regime also becomes “a tool” to legitimate of biopiracy practices. Due to massive international pressure, mostly in developing countries, it proposes two kinds of protections, which are positive protection and defensive protection. This paper will examine one of it, which is positive protection. By using the normative method and qualitative approach, this paper identified at least two kinds of positive protections that we can develop to protect genetic resources related to traditional knowledge, which are optimizing the patent law and developing the sui generis law. Furthermore, it can be done by some revision by adding new substances, an improvement on the articles, or even by doing the deletion on certain articles. Moreover, in order to develop the sui generis law, it identified several minimum elements that shall be contained on it, inter alia: the purposes of protection; scope of protection; criteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how the rights acquired; how to enforce it; how the rights lost or expired; and dispute resolution.  Keywords: Positive Protection, Genetic Resources, Traditional Knowledge.

scholarly journals The Right of the Employee to an Invention Created in the Process of Labor Relations. (In Accordance With the Georgian - German Patent Legislation)

2021 ◽  
pp. 152-167
Author(s):  
Miranda Gurgenidze ◽  
◽  
Tamaz Urtmelidze ◽  
Keyword(s):  
Intellectual Property ◽  
Main Part ◽  
Legal Status ◽  
Patent Law ◽  
The Other ◽  
Scientific Article ◽  
German Patent ◽  
National Patent ◽  
The One ◽  
The Right

Creative activity, which ends with the creation of intellectual property objects, are mostly carried out by individuals employed in various private sectors or scientists working in higher education/research institutions. Therefore, the question who is the owner of the intellectual property object (invention), employee/inventor, whose direct participation with and usage of intellectual labor, the object was created by, or the employer, whose material technical base, experience and the other resources were used to create the invention, does not lose relevance. Georgia belongs to the continental, i.e. Romano-Germanic legal system. Modern Georgian intellectual property law has undergone a very interesting path of development since the restoration of independence. It should be noted that Georgia is the first country from the former Soviet republics to establish a national patent agency in 1992 (12,246). In this article, the authors focus on the basic regulations of Georgian and German patent law that regulate the ownership of an invention created by employees. As it is known, in Georgia the issue is resolved by the „Patent Law“, while in Germany, in addition to the patent law, there is an „Employee Inventions Act“. The scientific article consists of an introduction, a main part and a conclusion. The introduction presents the urgency of the legal problem. The main part, on the one hand, discusses the legal status of inventions created by employees, gives the relationship between patent law and labor law on this issue (on the example of Georgian legislation) and, on the other hand, the authors analyze the German ,,Employee Inventions Act“, which we find a detailed arrangement of an issue of interest to us in. The law is structured in such a way that the balance between the interests of the employee and the employer is maximally maintained, the rule of compensation is provided, a distinction is made between service and free inventions, and ways of resolving disputes between the parties are provided. The legal basis for arbitration is in the foreground. There is also a court of law under the jurisdiction of which these disputes are considered.

scholarly journals THE MODERN VISION OF THE SYSTEM OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE

2021 ◽  
Vol 75 (2) ◽  
pp. 52-59
Author(s):  
Victoria Shekhovtsova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
The State ◽  
Point Of View ◽  
Property Right ◽  
Intellectual Property Right ◽  
Creative Activity ◽  
The Right ◽  
Intellectual Potential

The article is devoted to the research of the intellectual property rights system in Ukraine. Intellectual property is the result of the creative activity of any person or group of people. The author studied the categories «intellectual property» and «intellectual property right», investigated the principles of intellectual property and the system of intellectual property rights of Ukraine. In Roman law, there was the term «property», because the «property right» in its classical meaning was formed in Rome, and related to private relationships. Intellectual property is the property of a person that arose as a result of her creativity. However, for our Ukrainian legislation, the expression «intellectual property» is «terra incognita». Yes, intellectual property is studied by such branch legal sciences as: civil law, administrative law, international law, and others. Formed the State Service of Intellectual Property, but the organization of the state system of legal protection of intellectual property, in our difficult times, wants a better one. In the legal literature on intellectual property issues various definitions of «intellectual property right» are given. From a subjective point of view – this is a subjective right, and from an objective point of view – a civil law institute, a set of legal norms that regulate relations in the system of creation and protection of intellectual property. Man, his freedom and rights are the most important value of evolutionary development of society, which manifests itself in the growth of the intellectual potential of the population of each country. Only man possesses intelligence, creative potential and creative abilities. In addition to it, on earth, no living creature can create. Creative activity is the most important aspect of human life, which allows you to convey your talent to society. The consequence of this activity is something new, unique, unique and original. The accumulated products of the human mind are the heritage of the nation, which determine its further development.The Constitution of Ukraine guarantees to the citizens of the state freedom of scientific, artistic, literary and technical creativity, protection of intellectual property rights, moral and material interests arising in connection with various types of intellectual activity. Every citizen has the right to the results of his intellectual, creative activity; no one can use or distribute them without his consent, with the exception of the statutory provisions. The intellectual potential of the nation, in the form of improving education, production, culture, science and technology, needs constant support from our state. The Civil Code of Ukraine for the first time in our national legislation was given a formal definition of the right of intellectual property, as the rights of the individual to the result of intellectual, creative activity or other object of intellectual property rights.

scholarly journals CREDIT AGREEMENT WITH FIDUCIARY COLLATERAL IN THE FORM OF A PATENT IN THE PERSPECTIVE OF INDONESIAN LAW

2019 ◽  
Vol 7 (5) ◽  
pp. 71-75
Author(s):  
Aili Papang Hartono, S.H.
Keyword(s):  
Intellectual Property ◽  
Financial Institutions ◽  
Research Study ◽  
Theoretical Data ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Patent Holder ◽  
Community Needs ◽  
Credit Agreement ◽  
Exclusive Right

Purpose: Community needs for capital are obtained in various ways, one way is to make a debt agreement with financial institutions. This method is one way that is quite simple to obtain funds to support business activities. This debt agreement is usually carried out with a guarantee that the guarantee is a complement to provide assurance for financial institutions, in this case, the bank can obtain a loan refund in the event of an interpretation. One of the things that can be used as collateral is a patent. With the issuance of the latest law the patent is one way to obtain a loan from the bank. Methodology: This research study gathered theoretical data about loan granting under fiduciary security of patent. Main Findings: The development of the global community has caused development in security of loan application in banking internationally, one of them is security by using Patent. In Article 108 paragraph (1) of Patent Law, it is stated that right on Patent can be used as fiduciary security. The existing regulation indicates that the State supports economic development through granting of loan to Patent holders in order to develop their invention. A Patent Holder shall have an exclusive right to use the Intellectual Property Right by his/herself by using it as security. Implications/Applications: The findings of this study are helpful for the individuals in understanding the aspect of patents and exclusive rights held by the owner in order to secure Intellectual Property.

AGREEMENTS ON THE DISPOSAL OF PROPERTY RIGHTS TO THE OBJECTS OF PATENT LAW AND «KNOW-HOW»: NEWS OF LEGISLATION

2018 ◽  
Author(s):  
Juliia Kanaryk ◽  
◽  
Vladyslav Nosinskyi ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Patent Protection ◽  
Patent Law ◽  
Compulsory Licensing ◽  
Real Cost ◽  
Know How ◽  
Cost Of Drugs ◽  
The Right

The article is devoted to the review of novelties of the legislation in the part of disposition of property rights to objects of patent law and know-how. Based on the analysis of the existing legislation, it is established that there is an exclusive list of the following agreements: license to use the object of intellectual property rights; license agreement; agreement on the creation by order and use of the object of intellectual property rights; agreement on the transfer of exclusive intellectual property rights; another agreement on the disposal of intellectual property rights. It is noted that the agreement on the transfer (use) of «know-how» differs from that for the patent. The basis for granting the right to use «know-how» is not an exclusive right, but a de facto monopoly on the object of the agreement. «Know-how» in contrast to the patented invention can not be used without receiving it from the owner. The consequence of this is the need not only to grant the right of use under the contract, but also the transfer of the «knowhow» in full. It is noted that the legislator has significantly simplified the contractual procedures for granting the right to dispose of property rights for pharmaceutical companies due to the need to combat the pandemic. Lists of substances and medical procedures, medical equipment that cannot be the subject of patent protection have been established. It is emphasized that the legislator does not take into account the current level of digitalization, where the right to own or use intellectual property is certified by numerous electronic methods. For example, by confirming electronic licenses, user terms, affiliate programs with a number of intermediaries. Accordingly, it is necessary to expand the list of possible reliable ways of certifying contracts, which could be considered written or be equated to such a way. The bill №5552, which proposes amendments to the law «On Copyright and Related Rights», in terms of combating «patent trolling» was analyzed. The authors of the bill propose a number of administrative procedures that will help to respond quickly to such unfair actions of competitors. At the same time, it is noted that with the expansion of the contractual procedure, some of these cases could be avoided. It is proposed, as part of the fight against the COVID-19 pandemic, to introduce compulsory licensing, in order to reduce the real cost of drugs against the virus, as well as the logistics of specialized hospitals.

TIM THALER'S EXAMPLE IS CONTAGIOUS: THE RIGHT TO PUBLICITY AS AN INTELLECTUAL PROPERTY RIGHT

2021 ◽  
pp. 180-186
Author(s):  
E.A. Afanasieva ◽  
◽  
E.G. Afanasieva
Keyword(s):  
Intellectual Property ◽  
Property Right ◽  
Intellectual Property Right ◽  
Us States ◽  
Commercial Use ◽  
Right Of Publicity ◽  
The Us ◽  
Public World ◽  
The Right

Most of the articles presented in this review were written in order to discuss the recently published J. Rothman’s book «The right of publicity: Privacy reimagined for a public world». We are talking about a specific intellectual right recognized by most of the US states - the right of a person to control the commercial use of elements of her personality.

The Unit of Analysis in Field Research: Issues and Approaches to Design and Data Analysis

1998 ◽  
Vol 17 (3) ◽  
pp. 270-284 ◽  
Author(s):  
Stephen Silverman ◽  
Melinda Solmon
Keyword(s):  
Data Analysis ◽  
Burden Of Proof ◽  
Field Research ◽  
Random Assignment ◽  
Research Issues ◽  
Unit Of Analysis ◽  
The Third ◽  
Unit Of Measurement ◽  
The Right ◽  
And Control

This paper addresses the appropriate unit of analysis in field research. We first discuss the issues related to this topic: (a) unit of measurement versus unit of analysis, (b) treatments and random assignment, (c) independence of observations, (d) moderating and control variables, and (e) correlational versus experimental research. We then present a model for determining the correct unit of analysis. In many instances, researchers should use class means or subgroup means, and this has implications for research design. In the third section, we discuss the related issues of (a) the burden of proof, (b) asking the right questions and getting the right answers, and (c) completing statistical analyses. How data are analyzed can affect the results, and researchers should consider these issues when planning their research.

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