1.介绍
2022 年 1 月 6 日，美国专利商标局 (USPTO) 宣布了一项允许对专利主体资格的审查作延迟回复的试点项目（Deferred Subject Matter Eligibility Response Pilot Program, “DSMER” 项目）。我们在此对该项目做一个简要的介绍。
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Blockchain Patentability Through The Lens Of A Recent PTAB Decision
Blockchain patent applications may be divided into two types: underlying technologies of blockchain, such as consensus methods, security, etc., and applications of blockchain in, e.g., fintech, legal, and other industries. In patent examination, the first type, because it recites underlying technology improvement, rarely elicits subject matter rejections. The second type, applications of blockchain, are often found to be directed to an abstract idea. This article analyzes a recent Patent Trial and Appeal Board (PTAB) decision in a blockchain patent application and explores drafting and prosecution strategies to anticipate subject matter scrutiny.
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Improper Use of Commercial Signs — Proposed Revisions to Article 5 of the PRC Anti-Unfair Competition Law
On February 25, 2016, The State Counsel Legislative Affairs Office (“SCLAO”) released a draft amendment (“Draft Amendment”) of the PRC Anti-Unfair Competition Law (“AUCL”) for comment by industry and other stakeholders. Article 5 of the 1993 AUCL provides the basis for claims against Business Operators for unfair trade practices involving the misuse and misappropriation of trade dress, enterprise names, and other commercial signs. The Draft Amendment of the AUCL contains some interesting and encouraging language, but could benefit from additional clarification and fine tuning. Industry has until March 25, 2016 to submit comments on the Draft Amendment to the AUCL, and numerous industry organizations have been collecting comments for submission to SCLAO over the last few weeks. Here are some highlights of proposed changes to Article 5, and some of the open issues that will hopefully be addressed before a final version of the revised AUCL sees the light of day.
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Recent Developments in Recordal Procedures for Trademark Licenses in China
On August 26, 2015, the Trademark Office of The State Administration For Industry & Commerce of the People’s Republic of China (“TMO”) issued revised guidelines entitled Applications for Recordal of Licenses of Registered Trademarks, Recordal of Licensor/Licensee Name Change, Recordal of Early Termination of Trademark Licenses and Recordal of Withdrawal of Trademark Licenses (“2015 Guidelines”). The 2015 Guidelines are a slightly revised version of guidelines issued in 2014 that were intended to bring the license recordal regime in line with the 2014 Trademark Law and its Implementing Regulations. The TMO has not indicated whether the 1997 Measures for the Filing of Recordals of Trademark License Contracts (“1997 Recordal Measures”) will remain in effect after the establishment of new recordal procedures and the issuance of the 2015 Guidelines, but it is clear that a number of provisions of those earlier measures have been rendered moot under the new regime.
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China Court Ruled Infringement for Ambush Marketing in Film Industry
The term “Ambush Marketing” originally came from inappropriate sport advertisement in western countries. It involves a marketing strategy wherein the advertisers associate themselves with, and therefore capitalize on, a particular event without paying any sponsorship/license fee. As more and more film producers are engaging such marketing strategies to promote their films over recent years in the PRC, there have been controversies on whether Ambush Marketing activities should be deemed as infringement in the Film Industry.
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Comments on Recent Changes to the Trademark Law of the People’s Republic of China
A revision to the Trademark Law of the People’s Republic of China (“Trademark Law”) was adopted at the 4th Session of the Standing Committee of the Twelfth National People’s Congress of the People’s Republic of China on August 30, 2013. The revised Trademark Law will come into effect on May 1, 2014.
This latest version, which we will refer to as the “2013 Trademark Law”, is essentially the third version of an original Trademark Law adopted in 1982, and follows earlier revisions adopted in 1993 and 2001. The 2013 Trademark Law was adopted after the circulation of numerous draft versions for public comment beginning in 2009, and is thus the product of a long process of debate and compromise among government stakeholders, industry, legal academia, and the legal profession in the People’s Republic of China (“PRC”).
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Beijing Higher People’s Court Clarifies Usage of Consent Letters to Overcome Trademark Rejections in the PRC
While the PRC Trademark Law and Implementing Regulations provide no real guidance on how or whether consent letters can be used to overcome trademark application rejections on relative grounds, in recent years, the TRAB has accepted such letters to support arguments that a rejected trademark should be registered on appeal. There has, however, been very little guidance as to the standards that should be applied by the TRAB, and by the Beijing courts when considering the relevance of consent letters, and because of this, TRAB decisions involving consent letters or co-existence agreements have been inconsistent. This Higher People’s Court decision provides important clarifications as to trademark appeals practice in China as it relates to consent letters and co-existence agreements, and as to how such appeals cases are likely to be handled by the TRAB and the Beijing courts going forward.
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SIPO’s Draft Measures on Service Invention
By Harris Gao
On November 12, the State Intellectual Property Office (SIPO) released the Draft Measures on Service Invention《职务发明条例草案(征求意见稿)》(the “Draft Measures”) for public comments. Generally speaking, the Draft Measures enhance the rights of employee inventors, but create some uncertainty for employers.
Draft Amendment to China’s Copyright Law
By Jiamu Sun
The Copyright Law of the People’s Republic of China (“Copyright Law”) came into effect on June 1, 1991, and has since been followed by two rounds of revisions. The first round of revisions was in order to accommodate China’s entry into the World Trade Organization (“WTO”), and became effective on October 27, 2001. The second round of revisions was in order to implement WTO rulings in Sino-USA intellectual property rights disputes, and became effective on April 1, 2010.
China Revamps Its Outdated Copyright Pledges System
The State Copyright Bureau recently released a new set of copyright pledges registration rules to replace its current system. The "Measures for Registration of Copyright Pledges" (the "Measures") will become effective on January 1, 2011. Copyrights, like other property rights, can be pledged as a financial security. China has not updated its current copyright pledges registration system since it went into effect on September 23, 1996. The key provisions of the Measures are highlighted below.
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Patent Exhaustion Doctrine in China
Article 69 of the current PRC Patent Law (the “Law”) established the “Patent Exhaustion Doctrine,” providing: “None of the following shall be deemed an infringement upon a patent right: (1) using, promising to sell, selling or importing any patented product or product directly obtained through a patented process after such product is sold by the patentee or with the permission thereof; …”