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《专利法修正案(草案)》新进展解读

  • Categories:最新消息
  • Author:华讯知识产权
  • Origin:
  • Time of issue:2018-12-28 16:51
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(Summary description)近年来,随着我国经济社会的快速发展,各大企业对知识产权的重视程度不断提升。加强知识产权保护、提升自主创新能力已经成为我国在经济转型阶段的内在要求。在各大会议上,提高知识产权运用和保护的呼声此起彼伏,党的十八大明确提出“实施知识产权战略,加强知识产权保护”;十八大三中全会上提出“加强知识产权运用和保护,健全技术创新激励机制”;十八大四中全会上提出“完善激励创新的产权制度、知识产权保护制度和促进科技成

《专利法修正案(草案)》新进展解读

(Summary description)近年来,随着我国经济社会的快速发展,各大企业对知识产权的重视程度不断提升。加强知识产权保护、提升自主创新能力已经成为我国在经济转型阶段的内在要求。在各大会议上,提高知识产权运用和保护的呼声此起彼伏,党的十八大明确提出“实施知识产权战略,加强知识产权保护”;十八大三中全会上提出“加强知识产权运用和保护,健全技术创新激励机制”;十八大四中全会上提出“完善激励创新的产权制度、知识产权保护制度和促进科技成

  • Categories:最新消息
  • Author:华讯知识产权
  • Origin:
  • Time of issue:2018-12-28 16:51
  • Views:
Information

近年来,随着我国经济社会的快速发展,各大企业对知识产权的重视程度不断提升。加强知识产权保护、提升自主创新能力已经成为我国在经济转型阶段的内在要求。在各大会议上,提高知识产权运用和保护的呼声此起彼伏,党的十八大明确提出“实施知识产权战略,加强知识产权保护”;十八大三中全会上提出“加强知识产权运用和保护,健全技术创新激励机制”;十八大四中全会上提出“完善激励创新的产权制度、知识产权保护制度和促进科技成果转化的机制体制”。新的形势下,对企业在知识产权的运用和保护提出了更高的要求。

反观现行的专利法相关制度,在专利保护方面明显落后于新时期的发展要求,专利侵权举证难,周期长,成本高,赔偿额度低,重复侵权恶意侵权屡禁不止,在专利保护上的高投入低产出挫伤了很多创新型企业进行专利保护的积极性,有的甚至放弃了对专利的保护。专利保护的不力更加伤害了一些高研发投入的企业,这些企业既无法从创新中获利,又无法通过知识产权使其在竞争中获得优势地位。随着这些矛盾的日益突出,进行专利法的修改势在必行。

20181223日,第十三届全国人大常委会第七次会议对《中华人民共和国专利法修正案(草案)》提起审议。本次草案是自专利法1984年审议通过之后的第四次修正,修改的主要内容主要是增加举证规定,解决专利在维权过程中“举证难”的问题;加大专利侵权的赔偿力度,侵犯专利权最高赔5倍或者500万元;明确网络服务提供者对网络专利侵权的连带责任;增加“专利开放许可制度”,促进专利的转化、运用和实施;规定职务发明创造可实行产权激励,可采取股权、期权、分红等方式,促进专利的实施和运用;延长外观设计专利权保护期至15年。除此之外,还增加了关于创新药保护期延长5年等新的安排。

为了加强对专利权人合法权益的保护,解决长期存在的专利维权举证难的问题,草案完善了与举证责任相关的规定。草案中增加规定:人民法院认定侵犯专利权行为成立后,为确定赔偿数额,在权利人已经尽力举证,而与侵权行为相关的账簿、资料主要由侵权人掌握的情况下,可以责令侵权人提供与侵权行为相关的账簿、资料,侵权人不提供或者提供虚假的账簿、资料的,人民法院可以参考权利人的主张和提供的证据判定赔偿数额。

加大对侵犯专利权的赔偿力度,草案规定:对故意侵犯专利权,情节严重的,可以在按照权利人受到的损失、侵权人获得的权益或者专利许可使用费倍数计算的数额一到五倍内确定赔偿数额;并将在难以计算赔偿数额的情况下,法院可以酌情确定的赔偿额提升至十万元至五百万元。而在现行专利法中,法院可以酌情确定的赔偿额为一万元到一百万元。此项规定旨在提高专利侵权的成本,提升专利权人维权积极性,从而更好地保护专利权人的合法权益。

草案还新增加关于网络服务提供者责任的规定:(1)网络服务提供者知道或者应当知道网络用户利用其提供的网络服务侵犯专利权或者假冒专利,未及时采取删除、屏蔽、断开侵权产品链接等必要措施予以制止的,应当与该网络用户承担连带责任。(2)专利权人或者利害关系人有证据证明网络用户利用网络服务侵犯其专利权或者假冒专利的,可以通知网络服务提供者采取前款所述必要措施予以制止。网络服务提供者接到合格有效的通知后未及时采取必要措施的,对损害的扩大部分与该网络用户承担连带责任。(3)专利行政部门认定网络用户利用网络服务侵犯专利权或者假冒专利的,应当通知网络服务提供者采取本条第一款所述必要措施予以制止,网络服务提供者未及时采取必要措施的,对损害的扩大部分与该网络用户承担连带责任。本项规定的目的在于,减小侵权产品的销售市场,减轻侵权产品对专利权人权益的侵害。

草案增加了“专利开放许可制度”,草案规定:专利权人以书面方式向国务院专利行政部门声明其愿意许可任何人实施其专利,并明确许可使用费的,由国务院专利行政部门予以公告,实行当然许可。就实用新型、外观设计专利提出当然许可声明的,应当提供专利权评价报告。此项规定是为了促进专利的转化、运用和实施,同时提高了专利的转化率,为专利的转让和实施提供了便捷。

明确单位对职务发明创造的处置权,草案增加规定:单位对职务发明创造申请专利的权利和专利权可以依法处置,实行产权激励,采取股权、期权、分红等方式,使发明人或者设计人合理分享创新的收益,增加发明人或设计人的研发积极性,并能更好地促进相关发明创造的实施和运用。

为了适应我国加入关于外观设计保护的《海牙协定》需要,草案对外观设计专利权的保护期进行修改,延长为十五年,而现行专利法规定的保护期限为十年。

1223日的第十三届全国人大常委会第七次会议上,国家知识产权局局长申长雨还介绍了关于创新药保护期延长的相关规定。为了补偿创新药品上市评审审评时间,草案拟对在中国境内与境外同步申请上市的创新药品发明专利,国务院可以延长专利权期限,延长期限不得超过五年,且创新药上市之后的总的有效期限不超过十四年。此项规定旨在提高对创新药的保护,保护原研药厂的利益。

该《专利法修正案(草案)》的加速推进,表明我国在专利保护方面的决心,加大知识产权保护能使诸多企业受益,对推动中国企业“走出去”也具有重要的意义。目前该草案已经提交人大审议,有望在明年得以通过。

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Electronic

Electronic Arts pledges free use for five accessibility patents

Electronic Arts pledges free use for five accessibility patents Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents.  Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version. Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities.  The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919).   The code of the mentioned technology is published on EA’s GitHub, and it is open to all developers. Thus, the developers can use it or adapt it for their games without spending the costs to research. It is good that EA shares the patents for free use and aims to create an accessibility-increased gaming environment for players. However, it is not “unconditional” to use the listed patents. In the pledge, EA mentioned that it may terminate the promise for a specific party which files a patent infringement lawsuit or other patent proceedings against EA. We can see parts of EV’s ambition behind the announcement—to build a large game developer league and a community of shared interests.     Reference: https://www.ea.com/commitments/positive-play/accessibility-patent-pledge https://iknow.stpi.narl.org.tw/Post/Read.aspx?PostID=14562 https://www.polygon.com/22639469/apex-legends-electronic-arts-patent-pledge-accessibility-developers https://www.theverge.com/2021/8/24/22638535/ea-accessibility-patent-pledge-apex-legends-ping-system https://www.gamesradar.com/ea-secures-a-patent-for-the-apex-legends-ping-system-and-its-giving-it-away-for-free/ https://dotesports.com/apex-legends/news/apex-legends-ping-system-is-now-patent-free-for-accessibility https://www.nintendolife.com/news/2021/08/apex_legends_ping_system_now_patent-free_as_ea_announces_accessibility_pledge Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents.    Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version.   Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities.    The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919).   The
2021-10-22
The

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully!

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully! In response to the call for building a strong country with intellectual property rights, at 2 o'clock in the afternoon of October 21, the forum on "China's reform measures related to intellectual property rights and new trends in patent litigation" will be successfully held in Nanjing Jiangbei New District Industrial Technology Research and Innovation Park. The event was hosted by the Science and Technology Innovation Bureau of Nanjing Jiangbei New Area Management Committee, Nanjing Jiangbei New Area Industrial Technology Research and Innovation Park, Nanjing Intellectual Property Rights Protection Assistance Center Jiangbei New District Center, Nanjing Huaxun Intellectual Property Consultant Co., Ltd., Nanjing Intellectual Property Co-organized by the Protection Center (Nanjing Intellectual Property Rights Protection Assistance Center), Taiwan Pharmaceutical Development Association, and Gene Online. The director of Nanjing Intellectual Property Protection Center, Mou Xiaojian, delivered a speech. Director Mu expressed his warm congratulations on the holding of this event and introduced in detail the new pattern of intellectual property protection in Nanjing. He said: At present, Nanjing has implemented a rights protection assistance network in the municipal area. With full coverage, Nanjing Intellectual Property Protection Center is willing to closely communicate and interact with Nanjing's innovation entities, and provide relevant public welfare services such as rapid pre-review, rapid rights protection, and comprehensive utilization for enterprises in need. In addition, Huang Funan, CEO of Gene Online, was unable to come to congratulate due to the epidemic, and recorded a congratulatory video. In the video, he said: China Innovative Pharmaceuticals has already made many outstanding achievements on the international stage, and these are inseparable from intellectual property rights. The support of the company can also show the importance of intellectual property rights to biotechnology and pharmaceutical companies. This event invites four industry experts to focus on China's reform measures related to intellectual property rights and new trends in patent litigation, discuss with companies and universities, and make arrangements in advance. Dr. Qingchen Hou, general manager of Nanjing Huaxun Intellectual Property Consulting Co., Ltd., introduced the "Guidelines for Building a Powerful Country with Intellectual Property Rights (2021-2035)" and explained his views from four aspects: background, strategic layout, overall requirements, and organizational guarantees. . Subsequently, a detailed analysis of China's patent linkage system was carried out, and compared with the same types of cases at home and abroad, questions were raised: Why should we reward the first person who successfully challenged patents? Not the first person to file a P4 application? And have a series of discussions with you. Director Jiang Haijun of the Intellectual Property Protection Legal Committee of the Nanjing Lawyers Association gave a speech on three points: the problems after the amendment of the patent law, the enforceability of the amount of compensation, and the legal conflicts related to service inventions. Regarding the patent right evaluation report, he emphasized that the patentee, interested party or accused infringer can also proactively issue a patent right evaluation report. "Patent is a work of art that combines technology and law" is a message shared by Mr. Feng Tao from Jiangsu Junbo Law Firm at this event. Mr. Feng analyzes the big data of Chinese patent litigation cases through graphs and examples. Explore. The last topic of the event was shared by Guo Huangying, Intellectual Property Manager of Nanjing Huaxun Intellectual Property Agency (General Partnership)-China's Patent Infringement Judgment Principles and New Developments. Manager Guo explained to everyone the principles of patent infringement judgment and the necessity of patent infringement search and analysis before producing and selling products. In the intellectual property industry, ECCOM has been providing high-quality and professional comprehensive intellectual property services to enterprises and universities one step at a time. It also hopes that under the leadership of the state and the government, it will contribute to the building of a strong intellectual property nation in China. Make a contribution.
2021-10-22
Types

Types of patents that are easily overlooked- Design Patent

Types of patents that are easily overlooked- Design Patent In recent years, as the public’s awareness of intellectual property has increased, people have begun to consciously use the patent law to protect their intellectual property rights. However, in the process of implementation, they often only focus on invention patent and utility model patent, and tend to ignore the protection of design patent. Recently, Midea sued Haotaitai for two models of CXW-300-D998 and CXW-300-D908 Haotaitai brand range hoods In the case of suspected infringement of its design patent (patent number: ZL201930621598.X), the Guangzhou Intellectual Property Court made a first-instance judgment after hearing that it determined that the two products of Haotaitai constituted infringement, and ordered it to immediately stop the infringement and compensate Midea, The company's economic losses and reasonable expenses totaled 360,000 yuan. In fact, appearance infringement cases have occurred from time to time before, such as: "Molly" blind box design patent case, "Siemens" switch design patent infringement dispute case received a compensation of 6 million yuan, three Casio watch design patents were infringed Received a compensation of 8.8 million yuan and so on. The reason why people ignore the protection of design patents, in the final analysis, is that they have insufficient knowledge of design patents. Today, let's take a look at what is protected by design patents and what rights protections can we apply for? Design patent definition: Article 2 of the "Patent Law", design patent, refers to a new design that is aesthetically pleasing and suitable for industrial applications based on the shape, pattern, or combination of products, and the combination of color, shape, and pattern. Protected range: The shape of the product; the pattern of the product; the shape and pattern of the product; the shape and color of the product; the pattern and color of the product; the shape, pattern and color of the product. Protection period: The term of protection for design patent rights is 15 years, calculated from the date of filing. What are the conditions for applying for a design patent? The design should be aesthetically pleasing Appearance patents should be suitable for industrial applications The design patent application should be novel The design patent application should be inventiveness What are the advantages and functions of design patents? Protect the rights and interests of enterprises in product designs and fight against infringements in market competition. To enhance brand value, the quality and quantity of patents are the embodiment of the company's innovation ability and core competitiveness. Receive consumer recognition. If a company's new product appearance is filed for a patent in a timely manner, its appearance design will enjoy the exclusive right. Nowadays, consumers often choose products with trendy and beautiful appearance when buying their products. Applying for a design patent is a necessary condition for applying for a high-tech enterprise.
2021-09-26
Colopl

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million   This August, Nintendo and a game developer Colopl announced that they have settled for patent infringement regarding White Cat Project (Shironeko Project in Japanese), a smartphone game developed by Colopl. Although both companies did not publicly share exact details of the settlement, at least it is sure that Colopl agreed to pay 3.3 billion yen (about US$30.2 million) as the settlement fee for the proceedings, including the future license of Nintendo's patents.    How did the battle begin?  Being developed and published by a Japanese game developer, Colopl, White Cat Project is a free-to-play action role-playing game for Android and iOS systems. The mobile game was launched in July 2014 as well as got a television anime adaptation in 2020. It is incredibly popular to have more than 50 million downloads. Furthermore, the game is set to receive a Switch version titled "Shironeko New Project".    In September 2016, Nintendo noted the Colopl's game and considered that the game had infringed on several of Nintendo's technology patents. The two companies communicated with each other for over a year; however, Nintendo did not accept the explanations from Colopl, and Nintendo filed a lawsuit against Colopl at the beginning of 2018.    Nintendo claimed that Colopl infringed 6 of its patents. These patents protect touch-screen joystick functionality (patent no. JP3734820), multiplayer connectivity (patent no. JP5595991, JP6271692), confirmation screens in sleep mode (patent no. JP4010533), character attacks based on touch input locations (patent no. JP4262217), and a shadow effect placed on characters hidden behind the game geometry (patent no. JP3637031).   These patents almost cover various ways of game technology, especially the patent  JP5595991 and JP6271692. Their patent family is wide-reaching, and many divisional applications of the family are pending in Japan. They protect a communication game system and its related devices. It is not easy to detect the patent's existence and boundary since this kind of hardcore technique is so common in the gaming field and our daily lives.     The five-year patent war has been settled.  After a five-year dispute, the situation appeared to turn in Nintendo's favor as the Switch maker increased its monetary demands, which convinced Colopl to strike a deal that lets it use the disputed patents. Furthermore, a Switch version of White Cat Project remains in the works at Colopl.    With the extraordinary losses of Colopl, the legal battle between the two companies came to an end.  
2021-09-09
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